Billie Blanco - Property Post-MT Memaid (Last Edit Dec. 8, 2019) PDF

This is exactly what I have indicated it to be: a memory Note: There can be no true easement on one’s
aid, which the codal, Paras’ book, and annotations as well own property; thus, merger in the same person
as from the common law notes of Atty. Robles, and of the ownership of the dominant and servient
formatted for easier memorization and recall. All for love.
estate extinguishes the easement.
–BB

3. Jus in re aliena. - A real right that may be
alienated although the naked ownership is
maintained.
PROPERTY 4. A limitation or encumbrance on the servient
estate for another’s benefit.
5. Inherence (or, Inseparability, from the estate
I. EASEMENTS to which it belongs).
6. Indivisible (even if the tenement be divided).
A. EASEMENTS IN GENERAL 7. Intransmissible (unless the tenement affected
be also transmitted or alienated).
1. Definition of Easements (and Servitudes) 8. Perpetual (as long as the dominant and/or the
● It is an encumbrance imposed upon an servient estate exists unless sooner
immovable for the benefit of a community or extinguished by the causes enumerated in
one or more persons (personal easements) or the law).
for the benefit of another immovable
belonging to a different owner (real There can be no easement imposed on personal
easements). property; only immovables (not as defined by the
● It is a real right, constituted on another’s Code, but those which really cannot be moved) may
property, corporeal and immovable whereby be burdened with easements.
the owner of the latter must refrain from
doing or allowing somebody else to do
something on his property, for the benefit of ON EASEMENTS
another person or tenement ● A right in the owner of one parcel of land, by reason
(Sanchez-Roman). of such ownership, to use the land of another for a
special purpose not inconsistent with a general
2. Easement and Servitude, Distinguished property in the owner.
● A privilege which the owner of one adjacent
EASEMENT SERVITUDE tenement has of another, existing in respect of their
several tenement, by which first owner against
Used in common law Used in civil law whose tenement the privilege exists is obliged to
countries. countries. suffer or not to do something on or in regard to his
own land for the advantage of him in whose land
In common law, only Broader term. the privilege exists.
one form of servitude. ● Although the terms are sometimes used as if
convertible, properly speaking easement refers to
Always real (or, in favor Refers to a real the right enjoyed by one and servitude the burden
of another realty) easement, or to a imposed upon the other.
personal easement. ● In the civil law, the land against which the privilege
exists is called the servient tenement; its proprietor,
As used in the Civil Code, however, easement is the servient owner he in whose favor it exists, the
equivalent to servitude. dominant owner; his land, the dominant tenement.
And, as these rights are not personal and do not
3. Characteristics of Easements change with the persons who may own the
1. Real right. - An action in rem is possible respective estates, it is very common to personify
against the possessor of the servient estate. the estates as themselves owning or enjoying the
2. Imposable only on another’s property. easements.
Billie Blanco (2E) | Ateneo Law 2022 | 1

● The distinction between an ordinary easement and ● Redress nay also, as a general proposition, be
an easement in gross is that in the former there is obtained through a court of equity, for the
and in the latter there is not a dominant tenement improvement of an easement and an injunction will
[easement in gross... not connected with a be granted to prevent the same.
dominant tenement]

● Easements in gross are personal, are not assignable,
and will not pass by a deed of conveyance. They are ON SERVITUDES
not inheritable. ● The subjection of one person to another person, or
● Easements are also classified as continuous and of a person to a thing, or of a thing, to a person, or
discontinuous. The distinction between them being: of a thing to a thing.
○ Continuous are those of which the enjoyment ● A right which subjects a land or tenament to some
is, or may be continual, without the necessity of service for the use of another land or tenament
any actual interference by them. which belong to another master.
○ Discontinuous are those, the enjoyment of ● A real or praedial servitude is a charge laid on an
which can be had only by the interference of estate for the use and utility of another estate
man. belonging to another proprietor.
● By the common law, easements may be temporary; ● Rural servitudes are those which are due by an
by the civil law, the cause must be perpetual. They estate to another estate, such as the right of
impose no duty on the servient owner, except not to passage over the serving estate, or that which owes
change the treatment to the prejudice or the servitude, or to draw water from it, or to water
destruction of the privilege. cattle there…
● Easements are as various as the exigencies of ● Urban servitudes are those which are established
domestic convenience or the purpose to which over a building for the convenience of another, such
buildings and lands may be applied. as the right of resting the joists in the wall of the
● All easements must originate in a grant or serving building, of opening windows which
agreement, express or implied, of the owner of the overlook the serving estate and the like.
servient tenement; ● All servitudes are stereotyped and cannot be varied
● Easements are extinguished: by release; by merger, at the pleasure of parties.
when the two tenements in respect of which they
exist are united under the same title and to the
same person; by necessity, or abandonment, as by a B. DIFFERENT KINDS OF EASEMENTS
license to the servient owner to do some act
inconsistent with its existence; by cessation of REAL AND PERSONAL
enjoyment, when required by prescription - the As to Party Given Benefit
non-user being evidence of a release where the
abandonment has continued at least as long as the 1. Real easement. - An encumbrance imposed upon
user from which the right arose. An easement an immovable for the benefit of another immovable
acquired by grant cannot be lost by mere non-user, belonging to a different owner (Art. 613).
though it may be by non-user coupled with an e.g., Easement of water where lower estates are
intention of abandonment. obliged to allow water naturally descending from
● The destruction of an easement of a private right of upper estates to flow into them [lower estates].
any for public purposes is a taking of the property
of the dominant owner for which he must be Dominant and servient estate, distinguished (Art. 613).
compensated.
● An easement in favor of land held in common will
DOMINANT SERVIENT
be extinguished by a partition, if nothing is said
Immovable in favor of Immovable that which
about it
which the easement is is subject thereto.
● The remedy of common law for interference with a
established.
right of easement is an action of trespass, or where
it is for consequential damages and for an act not
done on plaintiff’s own land.

2. Personal easement. - An encumbrance established 2. Non-apparent easement. - Those which show no
for the benefit of a community, or of one or more external indication of their existence (Art. 615).
persons to whom the encumbered estate does not e.g., In general, negative easements, easement of not
belong (Art. 614). building to more than a certain height, easement of
E.g., Easement of right of way for the passage of lateral and subjacent support; easement of
livestock or right of way for the community intermediate distances.

CONTINUOUS AND DISCONTINUOUS POSITIVE AND NEGATIVE
As to the Manner They are Exercised As to the Purpose of the Easement or Nature of
Limitation
1. Continuous easement. - Those the use of which is
or may be incessant, without the intervention of any 1. Positive easement. - One which imposes upon the
act of man (Art. 615). owner of the servient estate the obligation of
e.g., The easement of drainage, the right to support a allowing something to be done or doing it himself
beam on another’s wall. (Art. 616).
e.g., Easement of light and view in a party wall, right
Note: For an easement to be considered “continuous,” of way, duty to cut off tree branches extending over
its use does not have to be incessant; it is enough the neighboring estates.
that the use MAY BE incessant.
2. Negative easement. - That which prohibits the
2. Discontinuous easement. - Those which are used owner of the servient estate from doing something
at intervals and depend upon the acts of man (Art. which he could lawfully do if the easement did not
615). exist (Art. 616).
e.g., Easement of right of way, because it can be e.g., Easement of light and view when the window or
exercised only if a man passes or puts his feet over opening is on one’s own wall or estate.
somebody else’s land.

Note: While both the continuous and discontinuous PARTIAL USE OR GETTING OF SPECIFIC MATERIAL
easements, as easements may be continuous According to Right Given
(permanent), their EXERCISE may be continuous or
discontinuous. 1. Right to partially use the servient estate;
● For indeed while all easements require 2. Right to get specific materials or objects from the
human actions for establishment, not all servient estate;
require human actions for exercise. 3. Right to participate in ownership; and
4. Right to impede or prevent the neighboring estate
from performing a specific act of ownership.
APPARENT AND NON-APPARENT
As to Whether or Not their Existence is Indicated
VOLUNTARY, LEGAL, OR MIXED
1. Apparent easement. - Those which are made According to Source or Origin
known and are continually kept in view by external
signs that reveal the use and enjoyment of the same 1. Voluntary. - Constituted by will or agreement of
(Art. 615). the parties or by a testator (Art. 619).
e.g., Right of way when there is an alley or a
permanent path; dam; window in a party wall visible 2. Mixed. - Created partly by agreement and partly by
to both owners. the law.

Note: The mark or sign need not be seen, but should 3. Legal. - Those constituted by law for public use or
be susceptible of being seen. for private interest (Art. 619).
(a) Waters (Arts. 637-648; See Water Code);
(b) Right of way (Arts. 649-657);
(c) Party wall (Arts. 658-666); extinguishes the easement, there is
(d) Light and view (Arts. 667-673); NO extinguishment of said easement
(e) Drainage of buildings (Arts. 674-676); if:
(f) Intermediate distances (Arts. 677-681); a) [T]he grantee or transferee of the
(g) Against nuisances (Arts. 682-683); and servient estate actually knew of the
(h) Lateral and subjacent support (Arts. 684-687). existence of the unrecorded
easement; and
b) [T]here is an understanding or
C. OTHER MATTERS stipulation that the easement would
continue to exist.
1. Inseparability of Easements (Art. 617). - Easements
are inseparable from the estate to which they actively 2. Indivisibility of Easements (Art. 618). - Partition or
or passively belong. division of an estate does not divide the easement,
● What this means is that they are which continues to be complete in that each of the
independently of the immovable to which dominant estates can exercise the whole easement
they are attached, easements do not exist. over each of the servient estates, but ONLY on the
● CONSEQUENCES OF INSEPARABILITY: PART corresponding to each of them.
(1) Easements cannot be sold or donated or
mortgaged independently of the real property to
IF SERVIENT ESTATE IS IF DOMINANT ESTATE IS
which they may be attached.
DIVIDED DIVIDED
➢ This does not mean, however, that a
person cannot grant an easement of The easement is not Each of them may use
right of way, for example, unless he modified, and each of the easement in its
also sells the land. It merely means them must bear it on the entirety, without
that when an easement is granted, part which corresponds changing the place of its
such easement refers to a particular to him. use, or making it more
parcel of land. burdensome in any other
(2) Registration of the dominant estate under way.
the Torrens system without the registration of
the voluntary easements in its favor, does not
extinguish the easements; but registration of
the servient estate without the registration of D. MODE OF ACQUIRING EASEMENTS
the easements burdening it extinguishes said
voluntary easements. 1. How Easements are Acquired (Arts. 620 and 622).
➢ Actual knowledge of third persons is
equivalent to registration in that if IF CONTINUOUS AND By title; and
they have actual knowledge of the APPARENT By prescription of 10
existence of the easement, they are years.
bound by the same, even though no
registration has been made. IF DISCONTINUOUS AND By title.
(3) Provision of the Land Registration Law. - APPARENT (Because they are not
“Easements shall continue to subsist and uninterrupted)
shall be held to pass with the title of
ownership until rescinded or extinguished BY IF CONTINUOUS AND By title.
VIRTUE OF THE REGISTRATION OF THE NON-APPARENT (Because they are not
SERVIENT ESTATE (without the registration or public)
annotation of the easements), or in any other
manner.’’ (Sec. 39, Land Registration Act — Act IF DISCONTINUOUS AND By title.
496 regarding the Torrens System). NON-APPARENT (Because the possession
➢ [T]he registration of the servient is neither public nor
estate without the registration of the uninterrupted)
voluntary easement presumably
● On Title: Title here does not necessarily 2) There is NO easement if the sign is
mean document. It means a juridical act or law REMOVED or if there is an agreement to this
sufficient to create the encumbrance. effect.
e.g., donation, testamentary succession,
contract. Note: This applies ONLY when:
● On Prescription: Note that prescription under 1) whether only one or both estates are
Art. 620 requires 10 years irrespective of the alienated;
good or bad faith, the presence or absence of 2) even if there be only one estate but there are
just title on the part of the possessor. two portions thereof, as long as later on there
is a division of the ownership of the said
In cases of continuous non-apparent and discontinuous portion; or
easements, whether apparent or not (Art. 623): 3) even in the case of division of common
● Proof of said easements may be: property, though this is not an alienation.
(a) by deed of recognition by the SERVIENT
owner; and This, however, DOES NOT APPLY: in case both estates
(b) by final judgment (here, the court does not or both portions are alienated to the SAME owner, for
create the easement, but merely declares its then there would be no true easement unless there is
existence). a further alienation, this time, to DIFFERENT owners.

2. Rules on Easements Acquirable by Prescription 4. Grant of Necessary Rights for the Use of the
Easement. - Upon establishment of an easement, all
IF EASEMENT IS IF EASEMENT IS
rights necessary for it use are considered granted
POSITIVE NEGATIVE
(Art. 625).
Begin counting the Begin counting from the
period from the day the time NOTARIAL 5. Use of the Easement for the Benefit of the
DOMINANT ESTATE PROHIBITION was made Immovable Originally Contemplated. - The owner of
began to EXERCISE it. on the SERVIENT the dominant estate cannot use the easement except
ESTATE (which must of for the benefit of the immovable originally
course be notified of the contemplated. Neither can he exercise the easement
notarial prohibition). in any other manner than that previously established
(Art. 626).

● Who makes the notarial prohibition or who
should commence the exercise of the E. RIGHTS AND OBLIGATIONS OF THE OWNERS OF THE
easement? The dominant estate, through its DOMINANT AND SERVIENT ESTATES
owner or usufructuary or possessor or legal
representative; in other words, any one who 1. Rights of the DOMINANT ESTATE
desires to establish the easement. (1) To exercise the easement and all necessary rights
for its use, including accessory easement (Art. 625);
3. Apparent Signs of an Easement that Apparently (2) To make on the servient estate all works
Exists (Art. 624) necessary for the use and preservation of the
(1) Before the alienation, there is no true easement. servitude, BUT —
(2) After alienation a) this must be at his own expense;
1) There arises an easement IF the sign b) he must NOTIFY the servient owner;
continues to remain there UNLESS there is a c) select convenient time and manner; and
contrary agreement. (The continuance of the d) he must NOT alter the easement NOR render it
sign is the TITLE.) (Though the law says MORE BURDENSOME (Art. 627).
“continues,” in reality, the easement arises for (3) To renounce totally (for an easement is
the first time, because before the alienation, indivisible) the easement if he desires exemption
no true easement existed.) from contribution to expenses (Art. 628).

2. Obligations of the DOMINANT ESTATE F. MODE OF EXTINGUISHING EASEMENTS
(1) Cannot alter the easement (Art. 627);
(2) Cannot make it more burdensome (Art. 627); 1. How Extinguished (Art. 631)
● Cannot use the easement except for movable (1) By merger in the same person of the ownership of
originally contemplated (See Art. 626); the dominant and servient estates1;
● In the easement of right of way, he cannot (2) By non-user2 for 10 years; with respect to
increase the agreed width of the path, nor discontinuous easements, this period shall be
deposit soil or materials outside of the computed from the day on which they ceased to be
boundaries agreed upon (for these acts would used; and, with respect to continuous easements from
be increasing the burden), BUT he may allow the day on which an act contrary to the same took
OTHERS to use the path (this really does NOT place;
increase the burden) except if the contrary (3) When either or both of the estates fall into such
has been stipulated. condition that the easement cannot be used; but it
(3) If there be several dominant estates, each must shall revive if the subsequent condition of the estates
contribute to necessary repairs and expenses in or either of them should again permit its use, unless
proportion to the BENEFITS received by each estate when the use becomes possible, sufficient time for
(and not in proportion to the VALUE of each estate). prescription has elapsed, in accordance with the
(In the absence of proof, we should presume the provisions of the preceding number (In other words,
benefits to be equal). when the tenement is in bad condition or there is
impossibility of use)3;
3. Rights of the SERVIENT ESTATE (4) By the expiration of the term or the fulfillment of
(1) To retain ownership and possession of the portion the condition, if the easement is temporary or
of his land affected by the easement (Art. 630) even conditional;
if indemnity for the right is given (as in the case of (5) By the renunciation of the owner of the dominant
the easement of right of way) (Art. 649), unless the estate4; and
contrary has been stipulated; (6) By the redemption agreed upon between the
(2) To make use of the easement, unless deprived by owners of the dominant and servient estates5.
stipulation provided that the exercise of the
easement is not adversely affected (Art. 630) and 2. Other Causes for Extinguishment of Easement
provided further that he contributes to the expenses (Though Not Expressly Mentioned in the Code)
in proportion to BENEFITS received, unless there is a (1) Expropriation of the servient estate;
contrary stipulation (Art. 628); and (2) Permanent impossibility to make use of the
(3) To change the location of a very inconvenient easement;
easement provided that an equally convenient (3) Annulment, rescission, or cancellation of the title
substitute is made, without injury to the dominant that
estate (Art. 629). constituted the easement;
(4) Abandonment of the servient estate;
4. Obligations of the SERVIENT ESTATE
(1) Cannot impair the use of the easement (Art. 629);
(2) Must contribute to the expenses in case he uses
the easement, unless there is a contrary stipulation
1
The merger must be absolute, complete, not temporary.
2
Non-user refers to an easement that has once been used
(Art. 628);
because one cannot discontinue using what one has never
(3) In case of impairment, to restore conditions to the used.
status quo at his expense plus damages; and 3
This merely suspends (unless extinguishment is caused by
(4) To pay for the expenses incurred for the change the necessary period for non-user) since possibility of use
of location or form of the easement (in the proper revives the easement.
case) (Art. 629). 4
Renunciation must be express, clear, specific (otherwise it
might be confused with non-user).

5
This is voluntary redemption, existing because of an
express stipulation. The stipulation may provide

conditions under which the easement would be
extinguished.

(5) Resolution of the right of the grantor to create the LEGAL EASEMENTS
easement (as when there is redemption of the
property sold a retro because of the exercise of the Recall: They are the easements imposed by the law,
right of conventional redemption) (See Art. 1618); and which have for their object — either: (a) public
(6) Registration of the servient estate as FREE, that is, use; (b) or the interest of private persons (Art. 634).
although the servient estate was registered under
the Torrens system, the easement thereon was not a. How Public and Communal Easements are
registered (Sec. 39, Act 496), unless there is a Governed (Art. 635)
stipulation or actual knowledge of the existence of (1) By special laws and regulations; and
the easement on the part of the transferee; (2) The Civil Code.
(g) In the case of the legal easement of right of way,
the opening of an adequate outlet to the highway b. How Legal Easements for Private Interest are
extinguishes the easement, if the servient owner Governed (Art. 636)
makes a demand for such extinguishment. (1) Agreement of interested parties provided not
prohibited by law nor prejudicial to a third person;
3. Prescription (2) in default of (1), general or local laws and
● The form or manner of using the easement ordinances for the general welfare; and
may prescribe as the easement itself, and in (3) in default of (2), the Civil Code.
the same way (Art. 632).

EASEMENTS RELATING TO WATERS6
IF EASEMENT IS IF EASEMENT IS LEGAL

VOLUNTARY
The following are the legal easements relating to
The easement may itself Some legal easements waters:
prescribe. do not prescribe, (1) natural drainage of lands (Art. 637);
moreover, the right to (2) natural drainage of buildings (Art. 674);
The form or manner of exercise them cannot (3) easement on riparian banks for navigation,
using (like number of also prescribe. floatage, fishing, salvage. (Art. 638);
windows, location of (4) easement of a dam (Arts. 639 and 647);
pathway, width of road) But the manner and (5) easement for drawing water or for watering
may also prescribe in form of using them may animals (Arts. 640 and 641);
the same manner as the prescribe, as in the case (6) easement of aqueduct (Arts. 643-646); and
easement itself. of the easement of right (g) easement for the construction of a stop lock or
of way. sluice gate (Art. 647).

But some legal
easements do prescribe, ON WATERS
as in the case of the ● Water is a movable, wondering thing, and must of
servitude of natural necessity continue common by the law of nature
drainage. ● No one has any property in the water itself, except
in that particular portion which he might have

abstracted from the stream and of which he had the
4. Effect on Prescription of Use by One Co-Owner of
possession.
the Dominant Estate
● The rule is that flowing water is publici jurei, not in
● The use benefits the other co-owners, hence,
the sense that it is bonuum vacans, to which the first
there will be no prescription even with
occupant may acquire an exclusive right, but that it
respect to their own shares (Art. 633).
is public and common in this sense only, that none

6
In case of conflict between the special laws and the new
Civil Code, the latter prevails (Art. 648).

can have any property in the water itself, except in
On Natural Drainage of Lands
the particular portion which he may choose to
a. What Lower Estates Are Obliged to Received (Art.
abstract from the stream and take into his
637)
possession, and that during the first time of his
(1) water which naturally and without the intervention
possession only. But each proprietor of the adjacent
of man descends from the higher estates (not those
land has the right to the usufruct of the stream
collected artificially in reservoirs, etc.); and
which flows through it.
(2) the stones and earth carried by the waters.
● The right of riparian owner in the water is

usufructuary, and consists not so much in the fluid
b. Duties of Servient Estate
itself as in its uses. The law does not recognize a
● The owner cannot construct works that would
riparian property rights in the corpus of the water;
impede the easement (Art. 637) such as a
the riparian proprietor does not own the water. He
blocking dam, which would divert the flow,
has the right to enjoy the advantage of a
and burden another tenement, nor can he
responsible use of the stream as it flows through
enclose his land by ditches or fences which
the land, subject to a like right belonging to all
would impede the flow but he may regulate
other riparian proprietors. Water when reduced to
or control the descent of the water. (Art. 113,
possession is property, and it may be bought and
Law of Waters).
sold and have a market value, but it must be in the

actual possession, subject to control and
c. Duties of Dominant Estate
management. When stored in an artificial appliance
● He cannot make works which will increase
or water course, it is personal property.
the burden (Thus, he cannot collect water,

nor increase the velocity of the descent by
ON WATER COURSE
making the ground more impervious or less
● It is a stream of water flowing in a definite channel,
absorbent.), but he may construct works
having a bed and sides on banks and discharging
preventing erosion (Art. 114, Law of Waters).
itself into some other stream or body of water.

● The essential characteristics of a water-course are a
On Natural Drainage of Buildings
channel consisting of a well-defined bed and banks,
a. Restrictions with Respect to the Easement of
and a current of water.
Drainage of Buildings7. - The owner of a building
● The bed, which is a definite and commonly
shall be obliged to construct its root or covering such
permanent channel, is the characteristic which
manner:
distinguishes the water of a river from mere surface
(1) A person should let rain water FALL on his own land,
drainage flowing without definite course or certain
and not on the adjacent land, even if he be a co-owner
limits, and from water percolating through the
of the latter; and
strata of the earth. The banks of water-course are
(2) Rain water must be COLLECTED (Art. 674), instead
the elevations which confine theaters to their
of just being allowed to drift to the adjacent or lower
natural channel when they rise. The water of a
land (See Art. 637).
water-course must have a current. The flow of the

water must usually be in one direction, and by a
b. Rule when a Tenement or Land is Subject to the
regular channel sharing both a source and a mouth.
Easement of Receiving Water Falling from the Roofs
● The controlling distinction between a water-course
● The owner may build in such manner as to
and a pond or lake is that in the former case the
receive the water upon his own roof or give it
water has a natural motion or a current, while in
another outlet in accordance with local
the latter the water is, it its natural state,
ordinances or customs, and in such a way as
substantially at rest.
not to cause any nuisance or damage whatever
● In the absence of a permanent source of supply,
to the dominant estate (Art. 675).
there can be no water-course in its legal sense.

7
Art. 674 does not really create an easement, for it merely

regulates the use of a person’s property insofar as rain
water is concerned.
c. Outlet of Rain Water Through Surrounding Houses ON RIPARIAN PROPRIETORS
● Whenever the yard or court of a house is ● Those who own the lands bounding upon a
surrounded by other houses, and it is not water-course
possible to give an outlet through the house ● One whose land is bounded by a navigable stream.
itself to the rain water collected thereon, the In its common law sense, the owner of the ripa or
establishment of an easement of drainage bank of a stream not navigable or owner of land
can be demanded, giving an outlet to the bounded generally on a stream; If it is necessary to
water at the point of the contiguous lands or express it by a single adjective, the term littoral
tenements where its egress may be easiest, and properties is more accurate.
establishing a conduit for the drainage in such ● Land to be riparian, must have the stream flowing
manner as to cause the least damage to the over it or along its borders.
servient estate, after payment of the proper ● Each riparian proprietor owns that portion of the
indemnity (Art. 676). bed of the river (not navigable) which is adjoining
his land usque ad filum aquae; or in other words, to
On Easement Along Riparian Banks8 the thread or central line of the stream.
● A bank is a lateral strip of shore washed by ● The titles of the riparian owner is a qualified one
the water during high tides but which cannot and subordinate to the public right of navigation
be said to be flooded or inundated. and subject to the absolute power of Congress over
● Under the Law of Waters and the old Civil the improvement of navigable rivers. The general
Code, all river banks are of public ownership, rule is that the riparian owner holds the right of
except river banks which had already become access to the water, subject to the right of the state
of private ownership under the Siete Partidas. to improve navigation.
● An owner does not lose his property in the soil by
a. When Easements Allowed submersion or avulsion if he afterwards reclaim it
(1) on banks of rivers (whether the bank be private or by natural or artificial means, nor does the length of
public; whether the river be navigable or not), a time during which the soil was submerged bar his
public easement for: rights. Land lost by submersion may be regained by
1) navigation; reliction unless the submergence has been followed
2) flotage; by such a lapse of time as to preclude the identity
3) fishing; and of the land from being established. If, after a
4) salvage. submergence, the water disappears from the land
(2) on banks of navigable or floatable rivers; also the either by gradual retirement or by the elevation of
easement of TOW PATH — for the exclusive service of the land by natural or artificial means, the
river navigation and floatage. proprietorship returns to the original owner. If an
island forms on the land submerged, it belongs to
b. Payment of Indemnity the original owner.
IF THE LAND BE OF IF LAND BE OF PRIVATE ● One proprietor cannot for his own benefit change or
PUBLIC OWNERSHIP OWNERSHIP obstruct the ordinary course of water in a stream to
the injury of other proprietors; and he may not
No indemnity Indemnity deflect the stream into a new channel. Such owner
may construct an embankment to protect his land
from flood water but not so in times of ordinary

floods, as to cause an overflow and injure other
c. Width of Zone Burdened.9 - 3 meters along the
proprietors.
river margins, for navigation, floatage, fishing,
salvage (Art. 638).

ON RIVERS
● A natural stream of water flowing between banks or
walls in a bed of considerable depth and width,
8
This is an easement on riparian property, banks of rivers
being so called whether its current sets always one
and streams.
9
As for tow paths: 2 meters for animals, and 1 meter for way or flows and reflows with the tide.
pedestrians.
● At common law, the bed or soil of all rivers subject ON NAVIGABLE WATERS
to the ebb and flow of the tide, to the extent of ● Those waters which afford a channel for useful
such ebb and flow, belongs to the crown; and the commerce.
bed or soil of all rivers above the ebb and flow of ● The test by which the character of a stream as
the tide, or in which there is no tidal effect, belongs public or private is determined, is its navigability in
to the riparian proprietors, each owning to the fact.
center or thread where the opposite banks belong ● In its technical sense, the term navigable, at
to different persons. common law, is only applied to the sea, to arms of
● The banks of public rivers are private property of the sea, and to rivers which flow and reflow with
the adjacent owners as fully as their other land. The the tide - in other words, to tide-waters, the bed or
public has no right to land upon them or upon the soil of which is property of the crown.
shore adjacent thereto. There is no right of way ● Navigable streams are highways.
along the margin of lakes and navigable rivers ● The term “navigable waters” has three distinct
unless acquired by express grant or prescription. meanings:
One floating his property down a stream has no ○ As synonymous with ‘tide waters,’ being waters
right, without a license, to use the banks of the fresh or salt, wherever the ebb and flow of the
stream to aid him. The right to raft timber does not sea is felt;
carry with it the right to deposit it upon private ○ As limited to tide waters which are capable of
property preparatory to being rafted. The banks of a being navigated for some useful purpose; and
river are not subject to the servitude of use by ○ As including all waters, whether within or
navigators. They cannot land on the banks against beyond the ebb and flow of the tide which can
the will of the owner except in case of peril, in be used for navigation.
which case vessels may land, either boat or cargo, ● Every structure in the water of a navigable river is
at any point that safety may require. subordinate to the right of navigation and must be
● Rivers, when naturally unfit for public use, are removed, even if the owner sustains a loss thereby,
called private rivers; they are the private property of if Congress, in assertion of its power over
the riparian proprietor, and cannot be appropriated navigation so determines.
to public use without compensation to their owners. ● The technical title to the beds of navigable rivers is
● A river, then, may be considered: a qualified one, and subordinate to the public right
○ As private in case of shallow and obstructed of navigation and subject to the absolute power of
streams; Congress over the improvement of navigable rivers.
○ As private property, but subject to public use, ● The judgment of Congress a to whether a
when it can be navigated; and construction in or over a navigable river is or is not
○ And as public, but with regard to its use and an obstruction to navigation is an exercise of
property, legislative power and wholly within its control and
● The state has the right to improve all rivers, and to beyond judicial review.
regulate them by lawful enactments for the public
food. Any obstruction of them without legislative ON TIDE-WATERS
authority is a nuisance, and any persons having ● Water which flows and reflows with the tide. All
occasion to use the river may abate the same, or if arms of the sea, bays, creeks, coves, or rivers, in
injured thereby, may receive his damages from its which the tide ebbs and flows, are properly
author denominated tide-waters.
● In common law jurisdictions, it is held that the ● The bed or soil of all tide-waters belong to the
ownership of the bed or soil of all rivers navigable crown or to the state in which they lie, and the
for any useful purpose of trade or agriculture, water themselves are public so that all persons may
whether tidal or fresh water, is in the state. use the same for the purpose of navigation and
fishery, unless retained by law. The State may grant

private rights in tide-waters, provided they do not

conflict with the right of navigation.


On Easement Concerning a Dam10 On Easement for Drawing Water or for Watering
● Whenever for the diversion or taking of water Animals11
● from a river or brook, or for the use of any The following must concur:
other continuous or discontinuous stream, it (1) They can be imposed only for reasons of PUBLIC
should be necessary to build a dam, and the USE;
person who is to construct it is not the owner (2) They must be in favor of a TOWN or VILLAGE; and
of the banks, or lands which must support it, (3) Proper indemnity must be paid (Art. 640).
he may establish the easement of abutment
of a dam, after payment of the proper On Easement of Aqueduct12
indemnity (Art. 639). The following are requisites to acquire the easement:
(1) Indemnity must be paid (to owners of intervening
estates and to the owners of lower estates upon which
ON DAMS
the waters may filter or descend) (Art. 642); [Note: The
● A construction of wood, stone, or other materials,
amount usually depends on duration and
made across a stream of water for the purpose of
inconvenience caused.]
confining it.
(2) If for private interests, the easement cannot be
● The owner of a stream not navigable may erect a
imposed on EXISTING buildings, courtyards, annexes,
dam across it, provided he does not materially
out-houses, orchards, or gardens (but can be on other
impair the rights of the proprietors above or below
things, like road, provided no injury is caused to said
to the use of the water in its accustomed flow; nor
properties) (See Art. 644);
has such owner the right to raise his dam so high as
(3) There must be proof:
to cause the stream to flow back upon the land of
1) that he can dispose (i.e., he has the right to
such supra-riparian proprietors. These rights may, of
dispose) of the water (The right is given thru
course, be modified by contract or prescription.
prescription or administrative concession.)
● When one side of the stream is owned by one
(Art. 643);
person and the other by another, neither, without
2) that the water is SUFFICIENT for the use for
the consent of the other, can build a dam which
which it is intended (The use must be
extends beyond the filum aquae, thread of the river,
indicated, otherwise, it is hard to determine
without committing a trespass.
sufficiency.) (But the use may be any kind as
● If a mill-dam be so built that it causes a
long as it is lawful.) (Art. 643); and
watercourse to overflow the surrounding country,
3) that the proposed course is the most
where it becomes stagnant and unwholesome, so
convenient and the least onerous to third
that the health of the neighborhood is sensibly
persons and the servient estate (Art. 643).13
impaired, such dam is a public nuisance, for which

its owner is liable to indictment.
a. Obligations of the Dominant Owner. - He is to 1)
● It is an indictable nuisance to erect a dam as to
keep the aqueduct in proper use or case; and 2) to
overflow a highway, or so as to obstruct the
keep on hand necessary materials for its use.
navigation of a public river.

11
The principal easements covered by Arts. 640 and 641
are
the easements for drawing water and watering animals

(like cattle), but there is also an accessory easement here
combined with the first, namely, the easement of right of way.
12
Arts. 642 to 646 deal with the legal (compulsory)
easement of aqueduct, the right to make water flow thru
intervening estates in order that one may make use of said
waters. Note that the existence of the easement of RIGHT
OF WAY does not necessarily include the easement of
aqueduct.
13
The shortest distance is not necessarily that
This Article speaks of the easement for the construction,
10
contemplated by the law.
abutment, or buttress of a dam.
b. Preservation of Right of Servient of Estate to Fence EASEMENTS OF LIGHT AND VIEW
● The servient owner may still enclose or fence
the servient estate, or even build over the This section deals with two kinds of easements:
aqueduct, so long as: (1) the easement of LIGHT14; and
(1) no damage is caused; or (2) the easement of VIEW.15
(2) repairs and cleanings become impossible
(Art. 645). a. Prohibition to Make an Opening through the Party
Wall. - No part-owner may, without the consent of
c. Particular Characteristics of the Easement. - For the others, open through the party wall any window
legal purposes (and to make the easement or aperture of any kind (Art. 667).
susceptible of acquisitive prescription for the benefit
of agriculture), the easement is considered b. Period of Prescription for the Acquisition of the
CONTINUOUS and APPARENT though in reality, it Easement (Art. 668)
may not be so (See Art. 646). The aqueduct may be The period shall be counted:
used only at times, or may be covered or in tubes.
IF THE WINDOW IF THE WINDOW

THROUGH A PARTY THROUGH A WALL ON

WALL THE DOMINANT ESTATE
ON AQUA
● It is a rule that water belongs to the land which it Positive. - From the Negative. - From the
covers when it is stationary. time of the opening of time of the formal
● But the owner of running water cannot obstruct the the window. prohibition upon the
flow to the injury of property below him. proprietor of the
adjoining land or
ON AQUAE DUCTUS tenement.
● A servitude which consists in the right to carry

water by means of conduits over or through the
c. Restricted Windows (Art. 669)16
estate of another.
The Restrictions Themselves:

● Maximum size — 30 cm. square (that is, not
ON AQUAE HAUSTUS
more than 30 cm. length or width);
● A servitude which consists in the right to draw
● There must be an iron grating imbedded in
water from the fountain, pond, or spring of another.
the wall;

● There must be a wire screen; and
ON AQUAE IMMITENDAE
● The opening must be at the height of the
● The right which the owner of a house, built in such
ceiling joists (beams) or immediately under
a manner as to be surrounded with other buildings,
the ceiling [NOTE: There may be several
so that it has no outlet for its waters, had to cast
openings provided, the restrictions are
water out of his residence on his neighbor’s roof
complied with for every opening. Moreover,
court, or soil. It is recognized in this common law as
there can be several openings in EVERY floor
an easement of drip.
or story, for each floor or story has a ceiling.].

On Construction of a Stop Lock or Sluice Gate
14
As in the case of small windows, not more than 30 cm.
square, at the height of the ceiling joist, the purpose of
The following are the requisites:
which is to admit light, and a little air, but not VIEW.
(1) purpose must be for irrigation or improvement; 15
As in the case of full or regular windows overlooking the
(2) the construction must be on the estate of another; adjoining estate (Incidentally, although the principal
(3) damages must be paid; and purpose here is VIEW, the easement of light is necessarily
(4) third persons should not be prejudiced (See Art. included, as well as the easement of altius non tollendi
647). [not to build higher for the purpose of obstruction].).

16
The openings or windows referred to in this article are
for light, not VIEW, hence, the conditions or restrictions set
for them.

d. Rule When Proper Distances are Observed. - When i. Rule When the Buildings are Separated by a Public
the distances are as given in Art. 670 (e.g., 2 meters Way or Alley. - Art. 670 applies. Note the minimum
from the boundary for windows with direct views), distance of three meters, subject to special
bigger or regular windows may be opened without regulations and local ordinances.
the restrictions given above.
j. Rule When a Right Has Been Acquired to Have
e. Sanctions in Case of Violations. - What can the Direct Views.18 - Whenever by any title a right has
adjoining or abutting owner do? been acquired to have direct views, balconies, or
(1) He can obstruct the light: belvederes overlooking an adjoining property, the
1) by constructing a higher building on his own owner of the servient estate cannot build thereon at
land; or less than a distance of three meters to be measured
2) by raising a blocking wall (in both cases he in the manner provided in Article 671.
cannot make the obstruction if the easement ● Any stipulation permitting distances less than
of light has been acquired — 10 years after those prescribed in Article 670 is void (Art.
notarial prohibition); and 673).
(2) If the wall becomes a PARTY WALL, he can close
the window, unless there is a stipulation to the
contrary (See Art. 669). ON ANCIENT LIGHTS
● Windows on openings which have remained in the
f. Rule on Regular or Full Windows17. - Regular same place and condition twenty years or more.
windows can be opened provided that the proper ● A right to unobstructed light and air through such
distances are followed (Arts. 670 and 671). openings is secured by mere user for that length of
● The Proper Distances: time under the same title.
(1) for windows having direct (face to face) ● One is entitled to as much light as his building may
views, observe at least 2 meters distance ordinarily require for habitation or business.
between the wall having the windows and ● To constitute actionable deprivation of light, it is
the boundary line; and not enough that there be less light than before;
(2) for windows having side or oblique views there must be a substantial deprivation of light,
(that is, one must turn his head to the right or enough to render occupation uncomfortable
to the left to view the adjoining land), according to notions of mankind.
observe a distance of at least 60 cms. ● There is no right of action merely because there
between the boundary line and nearest edge was less light then formerly, but only where
of the window (Art. 670). material inconvenience was caused in ordinary
occupation.
Note: The distance is shorter for oblique or side ● This obstruction of ancient light used to be a
views because of the diffi culty of overlooking. question of nuisance or no nuisance. The test now
is, not how much light has been taken, and whether
g. Building Right on the Boundary Line. - It is that is enough materially to lessen the enjoyment
permissible to build even up to the boundary line and use of the house which the owner previously
provided that NO regular windows are opened had, but how much light is left, and whether that is
(restricted windows are allowed) (Art. 669). enough for the comfortable use and enjoyment of
the house according to the ordinary requirements of
h. Rules as to Terraces. - Art. 670 applies also to mankind.
terraces, if there are railings (since the railings afford ● One who claims that the land adjoining his shall
protection to the viewer), but NOT if there are no remain uninmproved should show an express grant
railings (since the lack of protection makes difficult or covenant. There can be no such easement by
their use as windows). implication over adjoining unimproved land of the
18
Art. 673 speaks of a TRUE servitude (servitude of
Arts. 670 and 671 deal with regular, full windows (as
17
restraint or abstention) unlike Arts. 669 and 670 which do
distinguished from the restricted windows referred to in not really refer to easements since BOTH owners are
Art. 669). prohibited.
grantor. But it has been held that a grantee of land
b. Construction of Aqueduct, Wells, Sewers, Etc. - No
has an easement of light by implied grant over the
person shall build any aqueduct, well, sewer, furnace,
adjoining unimproved land by his grantor.
forge, chimney, stable, depository of corrosive
● As between landlord and tenant, it is held that a
substances, machinery, or factory which by reason of
lease of a tenement carries with it an implied grant
its nature or products is dangerous or noxious,
of the right to light and air from the adjoining land
without observing the distances prescribed by the
of the landlord where the situation and habitual use
regulations and customs of the place, and without
of the demised tenement are such that the right is
making the necessary protective works, subject, in
essential to its beneficial enjoyment.
regard to the manner thereof, to the conditions

prescribed by such regulations. These prohibitions
ON AIR
cannot be altered or renounced by stipulation on the
● No property can be had in the air; it belongs equally part of the adjoining proprietors.
to all men, being indispensable to their existence.
But this must be understood with this qualification, In the absence of regulations, such precautions shall
that no man has a right to use the air over another be taken as may be considered necessary, in order to
man’s land in such a manner as to be injurious to avoid any damage to the neighboring lands or
him. To poison or materially change the air, to the tenements (Art. 678).20
annoyance of the public, is a nuisance.
● That abutting land owners have rights of light and c. Rules with Respect to the Planting of Trees (Art.
air over a public highway is held in many cases 679)
● An abutting owner’s right was defined to be not ● Regarding distances, follow ordinances (if
only access to the lot, but light and air from the there be any) then customs.
street. The street occupies the surface and to its ● If neither ordinances nor customs are present on
uses the rights of the adjacent lots are subordinate, this point, the following distances must be
but above the surface there can be no lawful observed (minimum):
obstruction to the access of light and air, to the ○ tall trees — 2 meters from boundary
detriment of the abutting owner. The elements of line to center of the tree; and
light and air are both to be derived from the space ○ small trees or shrubs — 50 cm. from
over the land on the surface of which the street is boundary line to center of tree or
obstructed, and which is made servient for that shrub.
purpose.
● In the case of change of grade (of a street), an Note: Expected natural height is the criterion.
owner of land abutting on the street is not entitled Purpose: To prevent intrusion into neighboring
to damages for the impairment of access to his land estates.
and the lessening of the circulation of light and air
over it. ● BUT - Every landowner shall have the right to
demand that trees hereafter planted at a
shorter distance from his land or tenement be
uprooted.
EASEMENTS OF IMMEDIATE DISTANCES AND WORKS ● This applies too to trees apply to trees which
FOR CERTAIN CONSTRUCTIONS AND PLANTINGS ● have grown spontaneously.

a. Constructions and Plantings Near Fortified Places. - d. Rules Regarding Intrusions or Extensions of
No constructions can be built or plantings made near Branches and Roots (Art. 680)
fortified places or fortresses without compliance with
the conditions required in special laws, ordinances, and BRANCHES ROOTS
regulations relating thereto (Art. 677).19
Adjacent owner has the He may CUT them off

right to DEMAND that himself (because by
20
Follow the distances prescribed by the regulations
Public security and safety demand that Art. 677 be
19
(ordinances) AND customs, if there be any, otherwise take
complied with. precautions.
they be cut off (insofar ACCESSION or overshadow the adjoining land, and the roots do
as they spread over his INCORPORATION he has not enter it, the tree wholly belongs to the owner of
property). acquired ownership over the estate where the roots grow. When the tree
them). grows directly on the boundary-line, so that the line
passes through it, it is the property of both owners,
This does not prescribe This is imprescriptible, whether it be marked as a boundary or not.
if tolerated by invaded unless a notarial ● Where the branches of a tree growing upon the land
owner; if demand is prohibition is made.21 of one person overhang that of his neighbors, one
made, prescription runs may, without notice, out off no much of a tree as
from the date of said overhands his lands, if he can do so without going
demand. upon the land of the owner, and such owner cannot
acquire, either by prescription or the statute of

limitations, the right to overhang his neighbor’s
Note: The owner of the tree even if the branches and
land. And where a tree stands on the dividing line
roots have invaded the adjacent land can cut down
between adjoining lots, either owner may cut off
the tree himself, for he owns the tree.
branches or roots extending over his own land.

● The owner of land on which a partially decayed tree
e. Rules as to Fruits (Art. 681)22
is permitted to stand in such position that by falling
IF THE FRUITS STILL IF THE FRUITS HAVE it would damage the house of another, is liable for
HANG ON TO THE TREE NATURALLY FALLEN (not damages caused by its falling, after he has been
taken down by poles or notified that it was dangerous.
shaken)

They are still owned by They belong to the
the tree owner. owner of the invaded VOLUNTARY EASEMENTS
land.
Every owner of a tenement or piece of land may
establish thereon the easements which he may deem
suitable, and in the manner and form which he may
ON TREES deem best, provided he does not contravene the laws,
● A woody plant, the branches of which spring from, public policy, or public order (Art. 688).
and are supported upon, a trunk or body.
● They are part of the real estate while growing and a. Kinds of Voluntary Easements. - The easements
befoe they are severed from the freehold; but as established may be predial (for the benefit of an
they are cut down, they are personal property. estate) or personal.
● Trees belong to the owner of the land where they ● Only the owner or someone else, in the name
grow. When the roots grow into the adjoining land, of and with the authority of the owner, may
the owner of such land may lawfully claim a right to establish a voluntary predial servitude on his
hold the tree in common with the owner of the land estate, for this is an act of ownership.
where it was planted. But if the branches only
b. Right of Naked Owner to Impose Easements. - The
naked owner must respect the rights of the
21
A notarial prohibition can be made even if the intruding
usufructuary.
roots are already owned by the invaded owner, precisely
because an easement (in this case, an easement of
● While he may impose the easement of “altius
RESTRAINT) is made on somebody else or his property. non tollendi” (obligation not to build higher)
(See definition of a negative easement under Art. 616). without the usufructuary’s approval (Art. 689)
22
The rule is based not on accession for they were not still, insofar as the easement of right of way
grown or produced by the land nor added to it (naturally or is concerned, he should try to obtain the
artificially); nor on occupation (for they are not res ullius); usufructuary’s consent, for here the latter’s
but to avoid disputes and arguments between the rights may be interfered with. If he does not
neighbors. The mode of acquisition may be said to be the
get the usufructuary’s consent, he may be
LAW.
held liable for damages.
c. Rules When a Usufruct Exists. - Whenever the f. Rule to Apply when Servient Estate has Bound
naked ownership of a tenement or piece of land Itself to Pay for the Maintenance of the Easement. -
belongs to one person and the beneficial ownership To bear the cost of the work required for the use and
to another, no perpetual voluntary easement may be preservation thereof, he may free himself from this
established thereon without the consent of both obligation by renouncing his property to the owner
owners (Art. 690). of the dominant estate (Art. 693).25
● What this means is that -
(1) The beneficial owner (as distinguished
from the naked owner) may by himself
create a temporary easement compatible
II. EASEMENT OF RIGHT OF WAY
with the extent of his beneficial
dominion; and
(2) If the easement is perpetual (like the 1. Definition of Easement of Right of Way
permanent easement of right of way) ● This is the easement or privilege by which
both the naked and the beneficial owners one person or a particular class of persons is
must consent. allowed to pass over another’s land, usually
thru one particular path or line.
d. Creation of an Easement by the Co-Owners in a ● The term “right of way,” upon the other hand,
Co-Ownership. - The consent of all the co-owners may refer either to the easement itself, or
shall be required (Art. 691).23 simply, to the strip of land over which
● The consent given by some only, must be held passage can be done.
in abeyance until the last one of all the ● The following requisites must concur:
co-owners shall have expressed his (1) the estate is surrounded by other
conformity. immovables, and is without adequate outlet to
● But the consent given by one of the co-owners a public highway;
separately from the others shall bind the (2) payment of the proper indemnity (Art. 655);
grantor and his successors not to prevent the (3) the isolation should be due to the
exercise of the right granted. proprietor's own acts (See Art. 649); and
(4) the right of way claimed is at a point least
e. Governing Rules for Voluntary Easements (Art. 692) prejudicial to the servient estate and insofar as
consistent with this rule, where the distance
IF CREATED BY TITLE24 The title governs. The from the dominant estate to a public highway
Civil Code is suppletory. may be the shortest (See Art. 650).26

IF CREATED BY The form and manner in
2. The Proper Indemnity
PRESCRIPTION which it has been
acquired. The Civil Code IF THE PASSAGE IS IF THE PASSAGE IS
is suppletory. PERMANENT TEMPORARY
IF CREATED BY The way the easement Pay the value of land Pay for the damages
PRESCRIPTION (that is, has been possessed, occupied by the path caused.
may have been a that is, the manner and plus damages. [It is temporary when,
contract initially, but form of possession. The (Upon extinction of the for example, the estate
the form and manner Civil Code is suppletory. easement, the is not being cultivated
may have been indemnity is returned the whole year round,
extended or decreased
by prescription)
25
The abandoner must comply with the proper juridical
form for the transmission of the ownership of real
23
The consent however need not be given simultaneously; property. Hence, implied or tacit abandonment cannot be
they can be given successively. allowed.
24
The possession of an easement acquired by prescription 26
This is generally but not necessarily, the shortest
shall determine the rights of the dominant estate and the distance.
obligations of the servient estate.
7. Causes for Extinguishment of Easement of Right of
without interest, for the and when harvesting is
Way28
interest is considered only once in a while (3rd
(1) Opening of a new road; and
rent.) (See Art. 655). par., Art. 649), or when
(2) Joining the dominant estate to another (that is the
the carrying of materials
latter becomes also the property of the dominant
is needed to improve a
owner) which abuts, and therefore has access to the
building. (Art. 656).].
public highway (Art. 655).29

3. Classification of Right of Way Note: The extinguishment is not automatic, because
The right of way may be: the law says that the servient owner “may demand.’’
(1) private (such as the right given in this Art. 649); or It follows that if he chooses not to demand, the
(2) public (one available to the general public — but easement remains and he has no duty to refund the
then in such a case, the land involved would no indemnity.
longer be private land but a “highway” or a “public Also: If the easement is temporary, the indemnity
road.”) does not have to be returned since the damage had
already been caused.
4. Width of the Path. - The width may be modified
from time to time depending upon the reasonable 8. Easement of Right of Way for the Passage of
needs of the dominant estate (Art. 651). Livestock (Art. 657)
● Such shall be governed by the ordinances and
5. Rules if Grantor’s or Grantee’s Land is Enclosed regulations relating thereto, and, in the
(Arts. 652 and 653)27 absence thereof, by the usages and customs
IF THE ENCLOSING IF THE ENCLOSED of the place.
ESTATE IS THAT OF THE ESTATE IS THAT OF THE ● On maximum width. - It depends, if:
GRANTOR (seller, GRANTOR (seller, (1) animal path - 75 meters;
barterer, or co-owner barterer, or co-owner (2) animal trail - 37 meters and 50
but NOT donor) but NOT donor) centimeters; and
(3) cattle - 10 meters (unless prior to the old
The grantee does not The grantor must pay Civil Code, vested rights had been acquired to
pay indemnity for the indemnity. a greater width).
easement. ● Cross references when necessary to establish
a compulsory easement of right of way or for
a water place for animals to:
6. Ownership of, and Repairs and Taxes on, the Path ○ Arts. 640 and 641, which state the
(Art. 654) necessity to:
● Even though permanent, the path belongs to (1) indemnity payment; and
the servient estate, and he pays ALL the (2) the fact that the easement for drawing
taxes. water or for watering animals can be
● BUT the dominant estate: imposed only for reasons of public use in
(1) should pay for repairs; and favor of a town or village.
(2) should pay proportionate share of taxes to
the servient estate (“proportionate’’ means the
WHOLE tax for the whole estate).

27
The easement in Arts. 652 and 653 is in a sense a
voluntary easement (created implicitly by the will of the 28
This article applies only to the legal or compulsory
parties in view of the contract or agreement entered into). easement of right of way, NOT to a voluntary one.
It is of course compulsory in the sense that it has to be 29
But the new access must be adequate and convenient.
granted, generally without payment of any indemnity.
ON RIGHT OF WAY 1. That it is surrounded by other immovables and
● Actual knowledge of right of way is as binding as has no adequate outlet to a public highway;
registration. 2. After the payment of the proper indemnity;
● Servitude of right of way created by contract cannot 3. That the isolation is not the result of the
be extinguished unilaterally; it may be extinguished proprietor’s own act; and
by rescission of the contract or by renunciation of 4. That the right of way is at the point least
the owner of the dominant estate. prejudicial to the servient estate, and, where
● The existence of an outlet to a public highway does the distance from the dominant estate to a
not preclude the granting of the easement of right public highway may be the shortest.
of way, since what the law requires is an adequate
outlet. ● A right of way is the privilege which an individual,
● Owner of servient estate is not entitled to any or a particular description of individuals, as the
indemnity (Art. 652, NCC). inhabitants of a village or the owners or occupiers
● The easement or right of way may not be acquired of certain farms, have of going over another’s
through prescription. ground. It is an incorporeal hereditament of a real
● Right of way is not voluntary but compulsory. nature, entirely different from a common highway.
● Right of dominant proprietor to demand right of ● A right to pass over another’s land more or less
way is not absolute. frequently according to the nature of the use to be
● A servitude or easement of right of way may or may made of the easement, and how frequently is
not be apparent. It is apparent in case there is a immaterial, provided it occurred as often as the
road or pathway showing its exercise. It is claimant had occasion or chose to pass.
non-apparent in case there is no such apparent sign ● A right of way may arise:
for its exercise. ○ by prescription and immemorial usage or by an
● A presumption of a way resting in grant will not be uninterrupted enjoyment for 20 years under a
created by the fact that it is not continuously used claim of right;
by the dominant owner. ○ by grant, as when the owner grants to another
● A servitude or easement of right of way even in case the liberty of passing over his land.
it is apparent cannot be acquired by acquisitive ■ If the grant be of a freehold right it must
prescription because it is discontinuous, for the be by deed.
reason that it is not possible for man to be ○ by necessity, as where a man purchased land
incessantly passing over the right of way. The accessible only over land of the vendor, or sells,
classification of easements (in Art. 615) into reserving land accessible only over land of the
continuous and discontinuous refers to the exercise vendee, he shall have a way of necessity over
of the easement, not to the right itself, for the right the land which gives access to his purchase or
once created or established is continuous. It is the reservation, and this may exist even after the
exercise of the right which may or may not be vendor has conveyed his land to a third person;
continuous when it depends upon the intervention ○ by implication [see Rightsell vs. Hale, 18 S.W.
of the acts of man. 245];
● A voluntary servitude of right of way cannot be ○ by reservation expressly made in the grant of
extinguished except by voluntary rescission of the land over which it is claimed;
contract establishing the servitude or by ○ by custom as where navigation have a right of
renunciation by the owner of the dominant estate. their nature to tow along the banks of
The provisions of the Civil Code on the legal navigable rivers with horses; and
servitude of right of way, particularly Art. 655, are ○ by acts of legislature, through a private way
not applicable to a voluntary servitude of right of cannot be so laid out without the consent of
way. the owner of the land over which it is to pass.
● A party seeking the establishment of a compulsory ● A right of way may be either a right in gross, which
right of way under the provisions of Art. 649 (NCC) is a purely personal right incommunicable to
must show to the court the pre-conditions for its another, or a right appendant or annexed to an
grant, namely: estate, and which may pass by assignment with the
estate to which it is appurtenant.

● A right of way appurtenant to land is appurtenant to III. PARTY WALLS
all and every part of the land, and if such land be

divided and conveyed in separate parcels, a right of
1. Definition of Party Walls
way thereby passes to each of the grantees. A way
● This is a wall at the dividing line of estates.
is never presumed to be in gross when it can be
● Co-ownership governs the wall; hence, the party
construed to be appurtenant to land.
wall is necessary a common wall.
● Ways may be abandoned:
○ While it is called an easement by the law,
1. by agreement;
the law in some articles refers to it as a
2. by evident intention, or
case of co-ownership or part-ownership
3. by long non-user.
(See Arts. 662, 665, 666). The truth is
○ Twenty years’ occupation of land adverse
that, it is a compulsory kind of
to a right of way and inconsistent
co-ownership (FORGED INDIVISION)
therewith bars the right. Where a way of
where the shares of each owner cannot
necessity once existed, it will be presumed
be separated physically (otherwise the
to exist until some fact is shown
wall would be destroyed), although said
establishing its non-existence.
shares may in a sense be materially
● A person cannot acquire a prescriptive right of way
pointed out (Thus, each co-owner owns
over his own lands, or the lands of another which
the half nearest to him.).
he occupies as tenant; and where one has

uninterruptedly used a way over another’s land for
Note: Not all common walls are party walls.
the necessary length of time to establish an

easement by adverse user, it will be presumed that
Easements of Party Walls are governed by:
the user was adverse, and under a claim of title, and
(1) The Civil Code;
the burden is on one claiming that it was by virtue
(2) By local ordinances and customs as so far as they
of a license to prove that fact.
do not conflict with the same, and the rules of
● The owner of a right of way may disturb the soil to
co-ownership (Art. 658).
pave and repair it. But a way granted for one

purpose cannot be used for another.
2.Presumption that a Wall is A Party Wall (Art. 659)
● A person having a right of way which is obstructed
GENERAL RULE: The existence of an easement of
by a house erected upon the way may, after notice
party wall is presumed:
and request to move it, pull it down although it is
(1) In dividing walls of adjoining buildings up to the
actually inhabited.
common elevation;
(2) In dividing walls of gardens or yards situated in
cities, towns, or in rural communities; and
(3) In fences, walls, and live hedges diving rural
lands.

EXCEPTIONS: Unless there is:
(1) Title to the contrary;
(2) Exterior signs to the contrary; and
(3) Proof to the contrary.

Conflict Between a Title and an Exterior Sign. - A title
conferring (expressly) ownership in one owner

prevails over a mere exterior sign (from which, there

is merely an inference).


3. Exterior Signs Negativing the Existence of a Party (1) the repair had already been contracted for and
Wall (Art. 660)30 made (for here, he would still be liable to the
(1) Whenever in the dividing wall of buildings there is repairer); and
a window or opening; (2) he still uses the wall (as when it supports his
(2) Whenever the dividing wall is, on one side, building) (Art. 662). [If the building is demolished
straight and plumb on all its facement, and on the renunciation can be made. (Art. 663).].
other, it has similar conditions on the upper part, but ● The following requisites must concur:
the lower part slants or projects outward; 1) must be total or complete (not partial)31;
(3) Whenever the entire wall is built within the 2) must be made voluntarily and with full
boundaries of one of the estates; knowledge of the facts;
(4) Whenever the dividing wall bears the burden of 3) must be made before the expenses are
the binding beams, floors, and roof frame of one of incurred;
the buildings, but not those of the others; 4) is made with the implied condition that the
(5) Whenever the dividing wall between courtyards, other owner should make or pay for the repairs
32
gardens, and tenements is constructed in such a way ; and
that the coping sheds the water upon only one of the 5) must be of both the share in the wall and the
estates; share in the land, for the wall cannot be used
(6) Whenever the dividing wall, being built of without the land.33
masonry, has stepping stones, which at certain
intervals project from the surface on one side only, 6. Demolition of a Building Supported by the Party
but not on the other; and Wall. - If the owner of a building supported by a
(7) Whenever lands inclosed by fences or live hedges party wall desires to demolish the building, he may
adjoin others which are not inclosed. also renounce his part-ownership of the wall, but the
cost of all repairs and work necessary to prevent any
4. Party Ditches or Drains. - Ditches or drains opened damage which the demolition may cause to the party
between two estates are also presumed as common wall, on this occasion only, shall be borne by him (Art.
to both, if there is no title or sign showing the contrary 663).
(Art. 661).
● The presumption is also rebuttable. Thus, if a 7. Increasing the Height of the Party Wall (Art. 664)
deposit of dirt is on one side alone, the He who desires this:
owner of that side is considered the owner of (1) must do so at his own expense;
the ditch. (2) must pay the necessary damages caused, even if
the damage be temporary;
5. Repairs on and Construction of the Party Wall. - (3) must bear the costs of maintenance of the portion
The cost of repairs and construction of party walls ADDED;
and the maintenance of fences, live hedges, ditches, (4) must pay for the increased cost of preservation;
and drains owned in common, shall be borne by all
the owners of the lands or tenements having the 31
If a person owns 1/2 of the wall, he must renounce ALL
party wall in their favor, in proportion to the right of his share. He cannot insist on paying 1/2 of his share for
each (Art. 662). expenses by renouncing 1/2 of his share in the wall (that
is 1/2 of 1/2 or a renunciation of 1/4). [NOTE: The rule is
different in ordinary co-ownership, even in the case of a
Renunciation of the share of one owner in the party
wall owned in common (but not a party wall).]
wall may be made, in order to free himself from the 32
If repairs are not made, it is as if no renunciation had
contribution unless: been done, and the co-ownership remains. Thus also, if
neglect to make the repairs makes the wall fall,
co-ownership remains with the felled or destroyed wall,
each owner being entitled to his share of the materials.

30
The article enumerates, by way of illustration, exterior
signs rebutting the presumption of there being an If, however, the wall is to be removed to some other
33
easement of party wall (thus, instead of a party wall, we place, there need not be a renunciation of the land
have a wall exclusively owned by a single owner). originally used.

(5) must reconstruct if original wall cannot bear the not extend to the interior of the lots where the
increased height; and adjoining owner cannot be expected to build.
(6) must give the additional space (land) necessary, if ● Four (4) different senses of party-walls:
wall is to be thickened. 1. A wall of which the two adjoining owners are
tenants in common;
Note: He will however be the EXCLUSIVE owner of 2. A wall divided longitudinally into two strips, one
the ADDITIONS unless Art. 665 is availed of. belonging to each of the neighboring owners;
3. A wall which belongs entirely to one of the
8. How the Other Owners May Acquire adjoining owners, but is subject to an easement or
Part-Ownership in the Additions. - The value of the right in the other to have it maintained as a
additions at the time of acquisition by the others (not dividing wall between the two tenements; and
that at the time of construction) should be paid 4. A wall divided longitudinally into two moieties,
proportionally the value of the work and of the land each moiety being subject to a cross-easement in
used for its increased thickness (Art. 665). favor of the owner of the other moiety.
● Party-walls are generally regulated by statute. The
9. Use by the Co-Owners of the Wall. - Every principles of these acts generally are that the wall
part-owner of a party wall may use it in proportion to shall be built equally on the lands of the adjoining
the right he may have in the co-ownership, without owners, at their joint expense, but when only one
interfering with the common and respective uses by the owner wishes to make use of it pays one-half of its
other co-owners (Art. 666). value. Each owner has a right to place his joists in it
and use it for the support of his roof.
● The law of party-wall is based on the doctrine of
ON PARTY WALLS lateral support and is statutory extension of the
● A wall erected on the line between two adjoining principle to buildings. An owner of a party-wall
pieces of land belonging to different persons, for cannot extend the beams of his building beyond the
the use of both properties. middle of the wall.
● A structure for the common benefit and ● When the party-wall has been built, and the
convenience of both the tenements which it adjoining owner is desirous of having a deeper
separates. foundation, he has a right to undermine such wall,
● It ordinarily means a wall of which the two using due care and diligence to prevent any injury
adjoining owners are tenants in common. It does to his neighbor; and, having done so, he is not
not as a matter of law necessarily imply a solid answerable for any consequential damages which
structure. may ensue.
● It is a wall built by one owner partly on the land of ● An adjoining owner of a party-wall has a right to
another for the common benefit of both. The increase its height, but in doing so is liable for any
adjoining owners are not joint tenants or tenants in injury to the adjoining building, even though the
common of the party wall. Each is possessed in addition is being built by a contractor and the
severally of his own soil up to the dividing line, and damages result from a windstorm which causes the
of that portion of the wall which rests upon it; but wall to fall.
the soil of each, with the wall belonging to him, is ● When such a wall exists between two buildings,
burdened with an easement or servitude in favor of belonging to different persons, and one of them
the other, to the end that it may afford a support to takes it down with his buildings, he is required to
the wall and buildings of such other. erect another in its place in a reasonable time and
● Every wall and separation between the two with the least inconvenience; the owner must
buildings is presumed to be a common or party wall contribute to the expense, if the wall required
if the contrary be not shown. repairs, but such expense will be limited to the
● A party wall must be built without openings. A costs of the old wall.
party wall can only be built for mutual support; ● When the wall is taken down, it must be done with
painting a sign on it is unlawful. The principle of care, but it is not the duty of the person taking it
party walls is based upon mutual benefit, and does down to shore up or prop the house of his neighbor
to prevent it from falling. If, however, the work be

done with negligence, by which injury accrues to IV. LATERAL AND SUBJACENT SUPPORT
the neighboring house, an action will lie.

● The right to use a party-wall is not lost by lapse of
1. Easement of Lateral and Subjacent Support. - No
time, It can be acquired by prescription after a
proprietor shall make such excavations upon his land
sufficient period.
as to deprive any adjacent land or building of
● Where one built a party-wall, which was defective
sufficient lateral or subjacent support (Art. 684).34
and fell over injuring the adjourning premises, he

was held liable to the owner of the premises. Where
2. Distinction of ‘Lateral’ from ‘Subjacent’
a building having a party-wall is destroyed by fire,
leaving the wall standing, the easement in the wall LATERAL SUBJACENT
ceases; and so where the wall becomes unfit either
from age or accident. The support is lateral When the supported
● An agreement between adjoining owners in relation when both the land land is ABOVE the
to a party-wall erected on the division lines of their being supported and supporting land, the
lots is binding on the parties and those who the supporting land are support is subjacent.
purchase subject to such agreement, and creates on the SAME PLANE
cross easements upon the lots. It creates a covenant
running with the land.
● A property owner who utilizes a party-wall erected 3. Rule on Dangerous Excavations. - Any stipulation
by the owner of adjoining property must pay a or testamentary provision allowing excavations that
reasonable price for such use, either to the one who cause danger to an adjacent land or building shall be
erected it or to his grantee, although no agreement void (Art. 685).
was made a the time the wall was erected, and the
one making use of the wall may have acquired his 4. Applicability to Future Constructions. - The legal
title to the property after the wall was in existence. easement of lateral and subjacent support is not only
for buildings standing at the time the excavations are
made but also for constructions that may be erected
(Art. 686).35

5. Notification Regarding Intended Excavations. -
Any proprietor intending to make any excavation
contemplated in the three preceding articles shall
notify all owners of adjacent lands (Art. 687).
● Notice is not required, if there is actual
knowledge of the excavation. Otherwise, notice
is mandatory.
● Even if there be notice, the excavation should
not deprive the other owners of lateral or
subjacent support. This is true even if the
others consent (Art. 685), or even if the
excavation is carried out skillfully.
● Notice is required to enable adjoining owners
to take proper precautions.

34
It is again doubtful whether the easement for lateral or
subjacent support are true easements for, while they are
restrictions on ownership, still even without a prohibition
by the dominant estate, the elimination of such support
would be unlawful.
35
One is expected under this article to be prophetic (since
support must also be for future constructions).
ON LATERAL SUPPORT such a result) his neighbour shall suffer no more
● The right of having one’s land and the structure injury than would have accrued if the structure had
erected thereon supported by the land of a been put where it is without ever having had the
neighboring proprietor. support of his land.
● Each of two adjoining land-owners is entitled to the ● If a man in the exercise of his own rights of
support of the other’s land. The right of lateral property, do damage to his neighbor, he is liable if it
support exists only with respect to the soil in its might have been avoided by the use of reasonable
natural condition; and it is an incident to the land in care.
that condition. ● It has been held that prior notice to the neighbor
● If any excavation cause damage whilst the soil whose property may be endangered by the
remains in this condition, an action will lie, but in excavation is an essential part of the ordinary care
the absence of negligence in excavating, or referred to.
prescription, or grant, in favor of the neighbor, no ● One who digs away land which affords support to
action will lie for injury occasioned to the latter if an adjoining house ought to give the owner
he has increased the lateral pressure by building on reasonable notice of his intention to do so, and he
the land. must allow the latter all reasonable facilities for
● A land-owner has a right to assume that the soil obtaining artificial support, including a temporary
will be permitted to remain in its natural state, and privilege of shoring up the house by supports based
for a violation of this right, an action will lie upon the former owner’s land.
independently of the questions of negligence. ● One who proposes to excavate, or make other
● A person’s right to the support of the land alterations or improvements upon his own land,
immediately around his house is not so much an which may endanger the land or house of his
easement, as it has been called, as it is the ordinary neighbor, is bound to give the latter reasonable
right of enjoyment of property. notice of what he proposes to do, to enable him to
● This right of a land-owner to support his land take the necessary measures for the preservation of
against that of the adjacent owner does not extend his own property. But, after giving such notice, he is
to the support by any additional weight or structure bound only to reasonable and ordinary care in the
that he may place thereon. If, therefore, a man erect prosecution of the work. In many cases, it is held
a house upon his own land, so near the boundary that after notice from the owner who proposes to
line thereof as to be injured by the owner by excavate, it is the duty of his neighbor to shore up
excavating his land in a proper manner, and so as his own building.
not to have caused the soil of the adjacent parcel to ● The owner of land cannot be deprived of his right to
fall if it had not been loaded with an additional excavate his own land by the action of his neighbor
weight, it would be “damnum abegue injuria...” a loss in building at or near the boundary line, and if he
for which the person so excavating would not be conduct his operations with due care, and no right
responsible in damages. by grant or prescription has been acquired by his
● The unquestionable right of a land-owner to neighbor, he is not liable even though the building
remove the earth from his own premises adjacent to of the latter be ruined.
another’s building, is subject to the qualification ● In the case of a party wall, the joint owners of it
that he shall use ordinary care to cause no have no easement of reciprocal support from each
unnecessary damage to his neighbour’s property in other’s buildings, and if one proposes to remove the
so doing. In exercising his rights over his land, the building, and injury to his neighbor is liable to
owner is bound to use ordinary care and skill for the result from it, he must notify him of his intention,
purpose of avoiding injury to his neighbour. Thus, that he may look to his own protection, at the same
while as a general rule, he’s not bound to continue time using reasonable care and precaution to
the support his land gives to a structure upon, or protect his neighbor, and if this is done, and still
other artificial arrangement of adjoining land and is, injury results, no action will lie.
therefore, not liable to the natural consequences of ● The action for a wrong is not for the excavation; the
his withdrawing this support, yet in doing so, he land owner does not sustain damages until there is
must act with such care and caution that (as nearly an actual subsidence of his soil.
as by reasonable exertion it is possible to secure

● The measure of damages in action for removing the V. NUISANCES
lateral support of another’s land is the amount

required to restore the property to its former
1. Easement against Nuisance. - Every building or
condition with as good means of lateral support,
piece of land is subject to the easement which
and special damages must be specially pleaded; or
prohibits the proprietor or possessor from committing
the diminution of the value of the land by falling,
nuisance through noise, jarring, offensive odor, smoke,
caving, or washing, as the natural result of the
heat, dust, water, glare and other causes (Art. 682).
excavation.
● A nuisance is that which, among others,
● The doctrine of lateral support has been
annoys or offends the senses, and it should
stated…”This right exists independently of grant or
therefore be prohibited.
prescription, and is also an absolute right; so that, if

his neighbor excavates the adjoining land, and in
consequence, A’s land falls, he may have an action, DOMINANT ESTATE SERVIENT ESTATE
although A’s excavation was not carelessly or
unskillfully performed. This natural right does not The general public, or The proprietor or
extend to any buildings A may place upon his land; anybody injured by the possessor of the
and therefore, if A builds his house upon the verge of nuisance. building or piece of
his own land, he does not thereby acquire the right to land, who commits the
have it derive its support from the land adjoining it nuisance through noise,
until it shall have stood and had the advantage of jarring, offensive odor,
such support for 20 years. In the meantime, such etc. is servient in an
adjacent owner may excavate his own land for such easement against
purpose as he sees fit, provided, he does not dig nuisance; in another
carelessly or recklessly; and if, in so doing, the sense, the building or
adjacent earth gives way, and the house falls by reason the land itself is the
of the additional weight thereby placed on the natural servient estate, since
soil, the owner of the house is without remedy. It was the easement is
his own folly to place it there. But if it shall have stood inherent in every
for 20 years with the knowledge of the adjacent building or land.
proprietor, it acquires the easement of support in the
adjacent soil…” 2. Rights of the Dominant Estate
IF NUISANCE IS A IF NUISANCE IS A
PUBLIC NUISANCE PRIVATE NUISANCE

(1) a prosecution under (1) a civil action; or
the Penal Code or any
local ordinance; or (2) abatement, without
judicial proceedings (Art.
(2) a civil action; or 705).

(3) abatement, without
judicial proceedings (Art.
699).

3. Maintenance of Factories and Shops. - Subject to

zoning, health, police and other laws and regulations,

factories and shops may be maintained provided the

least possible annoyance is caused to the

neighborhood (Art. 683).


4. Definition of a Nuisance (Art. 694).36 - A nuisance is 5. Classification of Nuisances
any act, omission, establishment, business, condition
of property, or anything else which37:
NUISANCE PER SE NUISANCE PER

ACCIDENS
(1) Injures or endangers the health or safety of others;
e.g., a house in danger of falling; fireworks or Always a nuisance. A nuisance only because
explosives factory (but not a combined brewery and of the location or other
ice plants in San Miguel, Manila, a semi-industrial circumstances.
locality, particularly if the brewery will be operated
with a minimum of offense to nearby residences, and
if modern machinery will be installed); or houses and PUBLIC PRIVATE
similar constructions without building permits and
without provisions for the disposal of waste matter, Affects a community or That which is NOT
particularly if constructed near the main water neighborhood or any public (Art. 695).
pipelines. considerable number of
persons, although the
(2) Annoys or offends the senses; extent of the
e.g., too much horn blowing; a leather factory; annoyance, danger or
garbage cans; a pumping station with a high damage upon
chimney, located 3.8 meters from a house which individuals may be
would thus be rendered practically uninhabitable unequal (Art. 695).
because of the smoke, noise, etc.
e.g., a noisy or e.g., an illegally
(3) Shocks, defines or disregards decency or morality; dangerous factory in a constructed dam
e.g., burlesque performance (whether or not there is residential district partially resting on
a complete strip tease, since the “tease’’ remains, another’s estate.
provoking lust); public exhibition of a naked woman;

as when a movie artist strips nude in the lobby of a
6. When Successor to the Property May Be Held
moviehouse for the sake of publicizing a particular
Liable. - The successor, to be held liable, must
movie; a naked female’s picture shown for purposes
knowingly fail or refuse to abate the nuisance (Art.
of commercial gain, particularly when erotic
696).
positions are present (but not when same picture is

for a truly artistic or scientific purpose); a house of
7. Abatement and Damages May Be Sought. - The
prostitution.
abatement of a nuisance does not preclude the right

of any person injured to recover damages for its past
(4) Obstructs or interferes with the free passage of any
existence (Art. 697).
public highway or street, or any body of water; or

e.g., Houses constructed on public streets; market
8. Effect of Lapse of Time. - The action to abate a
stalls and residences constructed on a public plaza.
public or private nuisance is not extinguished by

prescription (Art. 698).
(5) Hinders or impairs the use of property.
● This does not apply to easements which are
e.g., illegal constructions on another’s land.
extinguished by obstruction and non-user for

10 years.
Note: If the hindrance or impairment is just,

authorized, and necessary, it is NOT a nuisance.
9. When the District Health Officers’ Responsibility. -

The district health officer shall take care that one or
all of the remedies against a public nuisance are
36
A nuisance is one of the most serious hindrances to the availed of (Art. 700).
enjoyment of life and property.
37
At present, nuisance may be used to refer either to the 10. Civil Action to be Commenced By the Mayor. - If a
harm caused or that which causes the harm (indecent civil action is brought by reason of the maintenance of
human conduct, physical condition of a thing), or both.
a public nuisance, such action shall be commenced by either: 1) a private person; or 2) a public official. As
the city or municipal mayor (Art. 701). long as:
(1) If he causes unnecessary injury; or
11. Who Determines Which Remedy is Best. - The (2) If an alleged nuisance is later declared by the courts
district health officer shall determine whether or not to be not a real nuisance (Art. 707).
abatement, without judicial proceedings, is the best
remedy against a public nuisance (Art. 702).
ON NUISANCES
12. When a Private Person May Sue on Account of a ● That class of wrongs that arises from the
Public Nuisance (Art. 703) unreasonable, unwarrantable, or unlawful use by a
(1) Ordinarily, it is the mayor who must bring the civil person of his own property, either real or personal,
action to abate a public nuisance; and or from his own improper, indecent, or unlawful
(2) But a private individual can also do so, if the personal conduct, working on obstruction of or to
public nuisance is SPECIALLY INJURIOUS to himself.38 the right of another, or of the public, and producing
such material annoyance, inconvenience,
13. Extrajudicial Abatement of a Public Nuisance. - discomfort, or hurt that the law will presume a
The rule is that, any private person may abate a consequent damage.
public nuisance which is specially injurious to him by ● A private nuisance is anything done to the hurt or
removing, or if necessary, by destroying the thing annoyance of the lands, tenements or
which constitutes the same, without committing a hereditaments of another. It produces damage to
breach of the peace, or doing unnecessary injury (Art. but one or a few persons, and cannot be said to be
704). public.
● The following requisites must concur: ● A public or common nuisance is such an
(1) That demand be first made upon the owner inconvenience or troublesome offence as annoys
or possessor of the property to abate the the whole community in general and not merely
nuisance; some particular person. It produces no special injury
(2) That such demand has been rejected; to one more than another of the people.
(3) That the abatement be approved by the ● A mixed nuisance is one which, while producing
district injury to the public at large, does some special
health officer and executed with the assistance damage to some individual or class of individuals.
of the local police; and ● It is difficult to say what degree of conveyance
(4) That the value of the destruction does not constitutes a nuisance. If a thing is calculated to
exceed interfere with the comfortable enjoyment of a man’s
P3,000. house, it is a nuisance. In relation to offensive
trades, it seems that when such a trade renders the
14. Extrajudicial Abatement of a Private Nuisance. - enjoyment of life and property uncomfortable it is a
Any person injured by a private nuisance may abate nuisance [for the neighbourhood has a right to pure
it: and fresh air].
(1) By removing; or ● Every citizen holds this property subject to the
(2) If necessary, by destroying the thing which implied obligation that he will use it in such a way
constitutes the nuisance, without committing a breach as not to prevent others from enjoying the use of
of the peace or doing unnecessary injury (Art. 705). their property.
● A thing may be a nuisance in one place which is not
Note: However, it is indispensable that the procedure so in another; therefore the situation or locality of
for extrajudicial abatement of a public nuisance by a the nuisance must be considered.
private person be followed. ● Persons living in populous manufacturing towns
must expect more noise, smoke, and disturbance
15. Damages in Case of Extrajudicial Abatement. - than those living elsewhere, and the circumstances
Note that the person liable for damages may be of every case must govern.
38

● To constitute a public nuisance, there must be such free passage of any public highway or street, or any
a number of persons annoyed that the offense can body of water, or hindering or impairing the use of
no longer be considered a private nuisance. property.
● Any annoyance arising from odor, smoke, unhealthy ● Cabarets are not nuisances.
exhalations, noise, interference with water power, ● Occupation of an estero is nuisance.
etc, etc, whereby a man is prevented from fully ● Houses constructed, without governmental
enjoying his own property, may be ranked as a authority, on public streets, and waterways obstruct
private nuisance. at all time the free use by the public of said streets
● Residents in large industrial cities must put up with and waterways, and, accordingly, constitute
a certain amount of noise which accompanies the nuisance per se, aside from public nuisance. As
reasonable recreations of a crowded population. such, the summary removal thereof, without judicial
The question in each case is whether such noises process or proceedings may be authorized by the
amount to a substantial interference with the statute or municipal ordinance, despite the due
comfort of neighbors upon ordinary sober common process clause.
sense standards.

● The remedies [against a nuisance] are:

1. by an action for the damage done, by the owner,

in the case of a private nuisance; or by any

party suffering special damages, in the case of a

public nuisance;

2. by abatement by the owner, when the nuisance

is private; and in some cases when it is public;

3. by injunction, which is the most usual and

efficacious remedy; or

4. by indictment for a public nuisance.

● A person may abate a public nuisance only when it

is also a private nuisance as to him, or incommodes

him more than the general public.

● Every continuance of a nuisance or recurrence of the

injury is additional nuisance forming in itself the

subject-matter of a new action.

● One who maintains on his premises dangerous

instrumentalities or appliances of a character likely

to attract children in play and who fails to exercise

ordinary care to prevent children from playing

therewith or resorting to, is liable to a child of

tender years who is injured thereby, even if the

child is technically a trespasser in the premises.

● Abatement of nuisance is an exercise of police

power.

● Houses constructed in public places constitute

public nuisance.

● Only nuisances per se may be abated summarily.

● Right to maintain private nuisance may be acquired

by prescription.

● In order that a civil action for the abatement of a

nuisance may lie, there must be clear and

convincing showing that the particular nuisance be

injurious or dangerous to the health or safety of the

plaintiff or his family, or annoying or offensive to

their senses, or obstructing or interfering with the

4. Hidden Treasure. - He who by chance discovers
VI. OCCUPATION
hidden treasure in another’s property shall have the
right granted him in Article 438 of this Code (Art.
1. Definition of Occupation. - The acquisition of 718).
ownership by seizing corporeal things that have no ● As to the Reward to Finder: If the owner
owner, made with the intention of acquiring them, should appear, in time, he shall be obliged to
and accomplished according to legal rules. pay, as a reward to the finder, one tenth of
● The following must concur: the sum or of the price of the thing found
(1) There must be a seizure or apprehension (Art. 720).
(the material holding is not required as long
as there is right of disposition); 5. Finding of “Lost Movable.” - Whoever finds a
(2) The property seized must be corporeal movable, which is not treasure, must return it to its
personal property; previous possessor. If the latter is unknown, the
(3) The property seized must be susceptible finder shall immediately deposit it with the mayor of
of appropriation; the city or municipality where the finding has taken
(4) There must be the intent to appropriate; place.
and ● The finding shall be publicly announced by the
(5) The requisites or conditions of the law mayor for two consecutive weeks in the way he
must be complied with. deems best.
● If the movable cannot be kept without
2. Some Kinds of Property Acquirable by Occupation deterioration, or without expenses which
(Art. 713) considerably diminish its value, it shall be
(1) Things appropriable by nature which are without sold at public auction eight days after the
an owner, such as animals that are the object of publication.
hunting and fishing; ● Six months from the publication having
(2) Hidden treasure39; and elapsed without the owner having appeared,
(3) Abandoned movables. the thing found, or its value, shall be
awarded to the finder. The finder and the
3. Land Ownership Cannot be Acquired by owner shall be obliged, as the case may be, to
Occupation. - The reason for the article is the fact reimburse the expenses (Art. 719).
that “when the land is without owner, it pertains to the
State” (Art. 714).
ON OCCUPANCY
● All lands whether originally with an owner, or ● The taking possession of those things corporeal
without one, and which at present have no which are without an owner, with an intention of
owner, belong to the State. It is likewise appropriating them to one’s own use.
submitted that abandoned land (one with an ● The title by which one acquires property in a thing
owner before) becomes patrimonial land of which belongs to nobody, by taking possession of it
the State susceptible of acquisition through with design of acquiring it.
acquisitive prescription. ● A mode of acquiring property by which a thing
● BUT - While land cannot be acquired by which belongs to nobody because the property of
occupation, it may be acquired by the person who took possession of it with an
prescription.40 intention of acquiring a right of ownership in it. The
basis of its origin seems to be not an instinctive
39
He gets half as finder, by occupation, provided he is not a bias towards the institution of property, but a
trespasser; if married, his share goes to the conjugal presumption, arising out of the long continuation of
partnership. that institution that everything should have an
40
Acquisitive prescription is a mode of acquiring ownership owner. Occupancy is sometimes used in the sense of
by a possessor thru the requisite lapse of time. In order to
occupation or holding possession.
ripen into ownership, possession must be in the concept of an
owner, public, peaceful, and uninterrupted. ● To constitute occupancy, there must be a taking of a
thing corporeal, belonging to nobody, with the
For that matter, acquisitive prescription of dominion and intention of becoming the owner of it.
other real rights may be ordinary or extraordinary.
● A right by occupancy attaches in the finder of lost VII. DONATION
goods unreclaimed by the owner; in the captor of

beasts ferae naturae, so long as he retains
1. Definition of Donations. - It is an act of liberality
possession, the owner of lands by accession, and
whereby a person disposes gratuitously of a thing or
the owner of goods acquired by confusion.
right in favor of another, who accepts it (Art. 725).

● Although the article says “an act,” it cannot
ON OCCUPANT
be denied that a donation is really a contract
● One who has the actual use or possession of a
(gratuitous, the consideration being
thing.
liberality).

● Nevertheless, it is by itself a mode of
ON OCCUPY
acquiring ownership, and does not ordinarily
● To hold in possession; to hold or keep for use. In
require delivery (or tradition), before
legal acceptation, actual use, possession, and actual
ownership can be transferred.
cultivation.

2. Essential Characteristics of True Donations
ON OCCUPATION
(1) Consent, subject matter, and cause (as in other
● The advisedly taking possession of that which is at
contracts);
the moment the property of no man, with a view of
(2) The necessary form (including delivery in some
acquiring property in it yourself. The actual
cases);
assumption of physical possession.
(3) Consent or acceptance by donee during donor’s
● In order that there may be adverse possession, it is
lifetime;
not necessary that a person actually occupy the
(4) Irrevocability (except for legal causes);
land, it is enough that he brings it under his control.
(5) Intent to benefit the donee; and
● Under the law, before a free patent could be issued,
(6) Resultant decrease in the assets or patrimony of
the applicant must satisfactorily show that the land
the donor.
was by him continuously occupied and cultivated,

either by himself or through others.
3. Necessity of Acceptance. - Acceptance by the
● Property not abandoned cannot be acquired by
donee is required because no one can be compelled
occupation.
to accept the generosity of another.41
● Occupation is the apprehension of corporeal
● Donation is an act of liberality and never
things which do not have an owner, with the
obligatory.
intent of acquiring ownership over them, and
● BUT, even a donation propter nuptias must be
according to the rules established by law. The
accepted to be valid, although express
subject matter of occupation are things which
acceptance is not needed.
have no owners [res nullius]. This mode of

acquiring ownership is, therefore, limited to
4. Classification of Donations
things without an owner and it cannot be

asserted over things owned by someone else.
FROM THE VIEWPOINT OF MOTIVE, PURPOSE, OR
However, when the thing has already been
CAUSE
abandoned by its owner, it becomes res nullius
(1) Simple. - The cause is pure liberality.
and may be acquired by occupation.
e.g., A donates a parcel of land to B.
(2) Remuneratory. - It can either be (Art. 726):

A donation, as a mode of acquiring ownership, results in
41
an effective transfer of title over the property from the
donor to the donee and once a donation is accepted, the

donee becomes the absolute owner of the property

donated.
1) to reward past services, with no strings attached FROM THE VIEWPOINT OF OBJECT DONATED
(wherein the services here do not constitute (1) Corporeal property. - That is: 1) donations of real
recoverable debts)42; property; and 2) donations of personal property.
e.g., A donates a parcel of land to B, who had (2) Incorporeal property. - Donations of alienable
previously helped him review for the bar rights.
examinations.
2) or to reward future services or because of certain 5. Effect of Illegal or Impossible Conditions. - Like in
future charges or burdens, when the VALUE of said testamentary dispositions, only the illegal or
services, burdens, or charges is LESS than the value of impossible conditions are disregarded. The donation
the donation.43 itself remains valid (Art. 727).44
e.g., A donates to B a parcel of land worth P700,000
DONATIONS INTER DONATIONS MORTIS
but B should give A a ring worth P150,000 or teach
VIVOS CAUSA
him certain things, the value of the instruction being
P90,000. Takes effect during the Takes effect after the
lifetime of the donor (Art. death of the donor (Art.
(3) Onerous. - here, there are burdens, charges or fu- 729). 728).
true service EQUAL in value to that of the thing
donated. Must follow formalities Must follow the
e.g., A donated land worth P2 million to B but B has of donations (if ordinary formalities of wills or
to give A a Ford Expedition Limited vehicle ring and simple). codicils (if holographic
worth also P2 million. or notarial).46

Governing Rules for Onerous and Remuneratory Cannot be revoked, Can be revoked at
Donations (Art. 733) except for grounds anytime and for any
ONEROUS DONATIONS REMUNERATORY provided by law. reason while the donor
DONATIONS is still alive.

Governed by the Rules Governed by the Rules In case of impairment of In case the legitime is
on Contracts. on Donations, as regards the legitime, donations impaired, donations
that portion which intervivos are preferred mortis causa are reduced
exceeds the value of the to donations mortis ahead of donations inter
burden imposed. causa. vivos, the latter being
preferred.

The right of disposition The right of disposition
FROM THE VIEWPOINT OF TIME OF TAKING EFFECT
is completely is not transferred to the
(1) Inter vivos; and
transferred to the donee donee, while the donor
(2) Mortis causa.
(although certain is still alive.

reservations as to
FROM THE VIEWPOINT OF OCCASION
usufruct may be made).
(1) Ordinary donation; and

(2) Donation propter nuptias [or, in consideration of
Acceptance by donee Acceptance by donee
marriage].
must be during life time can only be done after

42
The form of this donation should be followed
REGARDLESS of the true value of the past services
compared to the value of the donation.
43
This is really partly onerous, and partly simple. FORM:
Insofar as it is onerous, follow the form of contracts (sale, Art. 727 is different from the rule in contracts where the
44
exchange, barter); insofar as it is simple, follow the form of presence of impossible or illegal conditions renders the

donations. obligation itself VOID.
donor may give the property to somebody else, for he
of donor. 45 the donor’s death; any
has not really parted with the disposition of the
prior acceptance is
property.
immaterial is void.

6. Suspensive Condition Which May Be Fulfilled PERSON WHO MAY GIVE OR RECEIVE DONATION
Beyond the Lifetime of the Donor. - The fixing of an
event or the imposition of a suspensive condition, 1. Who May Donate. - All persons who may contract
which may take place beyond the natural expectation and dispose of their property may make a donation
of life of the donor, does not destroy the nature of (Art. 735).48
the act as a donation inter vivos, unless a contrary
intention appears (Art. 730). 2. Capacity of a Husband. - A husband is capacitated
7. Donation Subject to the Resolution of the Donor’s to enter into a valid contract if he is sui juris. He is
Survival. - When a person donates something, subject also capacitated to donate to his own children,
to the resolutory condition of the donor’s survival, whether of a present or a prior marriage, and
there is a donation inter vivos (Art. 731). whether legitimate or illegitimate, provided that the
donation be taken from his capital or individual
8. Suppletory Effect of Rules on Contracts property.
● Donations which are to take effect inter vivos ● BUT - insofar as donations of the conjugal
● shall be governed by the general provisions partnership are concerned, he is allowed to
on contracts and obligations in all that is not donate same, without his wife’s consent only in
determined in this Title (Art. 732). the following cases:
● The law of contracts and obligations has (1) moderate donations given for charity or
suppletory effect to the provisions of this title on occasions of family rejoicing or family
on ordinary donations. distress (Art. 125, Family Code); and
○ After all, a donation is really a (2) donations or promises to common
gratuitous contract. legitimate children (those of the husband and
the wife) for the exclusive purpose of
9. Perfection of the Donation. - The donation is commencing or completing a professional or
perfected, not from the time of acceptance but from vocational course or other activity for
the time of knowledge by the donor that the donee self-improvement (Art. 121, Family Code.).
has accepted (Art. 734).47
● If there is no acceptance, the donation will of 3. Capacity of the Wife. - Unless she is the
course be null and void. administratrix of the conjugal partnership, she
cannot donate conjugal property without the
Recall: husband’s consent except in the case of a moderate
Acceptance (of a donation inter vivos) must be made donation for charity or on occasions of family
during the lifetime of the donor and of the donee. rejoicing or family distress (Art. 125, Family Code).
(Art. 746).
4. Donation by a Guardian or Trustee. - Guardians and
10. Rule Prior to Knowledge of Acceptance. - Prior to trustees cannot donate the property entrusted to
learning of the acceptance, there is as yet no them (Art. 736).49
perfected donation (no donation at all), hence, the

46
This means that it is governed by the rules established
by the Title on Succession. 48
It is not enough that a person be capacitated to contract;
45
In this situation, though the property shall not be he must also have capacity to dispose (by acts inter vivos)
delivered till after the donor’s death, this shall be a of his property.
donation inter vivos. The fruits of the property from the 49
Guardians and trustees may of course donate their own
time of the acceptance of the donation, shall pertain to the properties, unless they are otherwise disqualified by the
donee, unless the donor provides otherwise. law, but not the property entrusted to them, for the simple
47
The knowledge may of course be actual or constructive. reason that they are not the owners thereof.

5. Determination of Donor’s Capacity. - The donor’s (2) relative incapacity — where under certain
capacity shall be determined as of the time of the conditions, a particular person cannot inherit
making of the donation (Art. 737). from a particular decedent.

6. When a Person is “Specially Disqualified.”50 - All 9. Donations to Minor and Others who Cannot Enter
those who are not specially disqualified by law into Contract. - Minors and others who cannot enter
therefor may accept donations (Art. 738). into a contract may become donees but acceptance
shall be done through their parents or legal
7. Donations that are Void Because of Moral representatives (Art. 741).
Consideration (Art. 739)
(1) Those made between persons who are guilty of 10. Donations to Conceived and Unborn Children. -
adultery or concubinage at the time of the donation51; Donations made to conceived and unborn children
(2) Those made between persons found guilty of the may be accepted by those persons who would legally
same criminal offense, in consideration thereof52; and represent them if they were already born (Art. 742).55
(3) Those made to a public officer or his wife, ● It is essential that:
descendants and ascendants, by reason of his office.53 (1) the child be born alive later (if it had a
normal intrauterine life); or
Note: The donations referred to in Art. 739 are void (2) that the child, after being born alive, should
by reason of public policy. Another donation void live for at least 24 hours (if it had an intra
because of public policy is that between spouses, as uterine life of less than 7 months).
a rule (Art. 87, Family Code). This is true even if the
spouses be merely common-law spouses. 11. Disguised Donations to Incapacitated Persons. -
Donations made to incapacitated persons shall be
8. Applicability of Rules on Incapacity to Succeed by void, though simulated under the guise of another
Will. - Incapacity to succeed by will shall be contract or through a person who is interposed (Art.
applicable to donations inter vivos (Art. 740).54 743).
● Under the law of succession, there are two
kinds of incapacity to inherit: 12. Donation of the Same Object to 2 or More
(1) absolute incapacity — where in no case Different Donees. - Donations of the same thing to
can there be a transmission of the two or more different donees shall be governed by
inheritance; and the provisions concerning the sale of the same thing
to two or more different persons (Art. 744).
● Cross-Reference to Art. 1544 (Double Sale):
50
“Specially disqualified’’ does not refer to those
○ If the same thing should have been sold to
incapacitated to contract like minors or those of unsound
mind, but to people such as those mentioned in Art. 739,
different vendees, the ownership shall be
and husbands and wives with respect to immoderate transferred to the person who may have first
donations from each other. taken possession thereof in good faith, if it
51
The adultery or concubinage need not be proved in a should be movable property.
criminal action. The action for declaration of nullity may be ○ Should it be immovable property, the
brought by the spouses of the donor or donee; and the ownership shall belong to the person
guilt of the donor and donee may be proved by acquiring it who in good faith first recorded
preponderance of evidence in the same action.
it in the Registry of Property.
52
Regarding this kind of donation, apparently it is
imperative that there must be a criminal conviction; hence,
○ Should there be no inscription, the
mere preponderance of evidence showing guilt is not ownership shall pertain to the person who
sufficient. in good faith was first in the possession;
and, in the absence thereof, to the person
But it cannot be denied that even if the crime is not
carried out, the contract would still have an illegal cause, 55
The donations here refer to both simple and onerous
and should therefore be considered void. ones, except that in the case of the latter, if it turns out
53
The purpose of this is, to prevent bribery. that the onerous donation proves unfavorable to the child,
54
Art. 740 speaks of donations void by reason of the it is as if the conceived child possessed no juridical
unworthiness of the donee. personality. (See Art. 40).

who presents the oldest title, provided there
right donated.
is good faith.
(Acceptance may of

course be oral or
13. Through Whom is Acceptance Made. - This article
written, express or
speaks of two kinds of authorized persons:
implied.)
(1) one with a special power;

(2) one with a general and sufficient power.
(2) Can be made in

writing.58
In addition, a donee may accept PERSONALLY.

The formalities for acceptance, if any, must also be 16. Formalities for Donations of Real Property (Art.
present, otherwise the donation is void. 749)
IF THE DEED AND THE (1) The instrument must
14. Additional Duty of Those Who Accept for Others. ACCEPTANCE ARE IN be a public document;
- Persons56 who accept donations in representation of THE SAME INSTRUMENT and
others who may not do so by themselves, shall be (2) The document must
obliged to make the notification and notation of specify the property
which Article 749 speaks (Art. 747). donated and the
● Notification and notation, in the proper cases, charges (burdens), if
are essential for the perfection of the any.
donation.
Note: If the giving and
15. Formalities57 for the Donation of Movable the accepting are in the
Property (Art. 748) SAME public
IF THE VALUE OF THE Should always be in instrument, notification
DONATED MOVABLE IS writing. to the donor of the fact
MORE THAN of acceptance is NOT
P5,000 The acceptance must necessary. And this is
also be in writing. true, even if the
Hence, if the donation is acceptance was made on
made in an affidavit, and ANOTHER date and in a
the donee merely place other than that
signifies his acceptance where the deed was
orally, the donation is executed. What is
null and void. important is that the
acceptance was made in
IF THE VALUE OF THE (1) Can be made orally, the SAME public
DONATED MOVABLE IS and instrument.
P5,000 OR LESS BUT -
1) Simultaneous IF THE DEED AND THE (1) The donation must
delivery of thing, ACCEPTANCE ARE NOT be in a public
or IN THE SAME instrument or
2) Simultaneous INSTRUMENT document;
delivery of the (2) The document must
document specify the property
representing the donated and the
charges, if any;
(3) The acceptance in a
56
It is understood that the “persons’’ referred to here are
duly authorized to do the acceptance.
57
Without them, the donation is not only voidable. It is 58
Note: It should be observed that the law does not require
completely void. the acceptance here to be in writing. It may therefore be
oral.
property to pay off his debts contracted
separate instrument
before the donation, otherwise there is a
must be in a public
presumption that the donation was made to
instrument;
defraud creditors (See Arts. 759 and 1387).
(4) The donor shall be

notified in authentic
2. Donations of ‘Future Property’. - Donations cannot
form of the fact that
comprehend future property, since by future property
acceptance is being
is understood anything which the donor cannot
made or has been made
dispose of at the time of the donation (Art. 751).
in a separate public
● Future inheritance cannot be the object of a
instrument;
donation, but present or accrued inheritance
(5) The fact that there
may be, even if the properties have not yet
has been a notification
been delivered, for in succession, the rights to
must be noted in both
the inheritance are transmitted from the very
instruments.
moment of the death.

Note: If the notification
GENERAL RULE: A donation of future property, since it
and the notation are not
is prohibited by the law, should be considered null
complied with, the
and void.
donation is VOID.
EXCEPTION: The Civil Code allows the donation of
future property in what authors generally refer to as
Note: The registration in the Registry of Property of “contractual succession.’’
the donation of real property is not needed for ● This occurs when in a marriage settlement,
validity between the parties and their assigns; the the would-be spouses are allowed to donate
registration is only useful for binding third parties. mortis causa to each other “future property”
to the extent permitted under the rules of
testamentary succession (See Art. 84, Family
EFFECT OF DONATIONS AND LIMITATIONS Code).
● The future spouses may give each other in
1. Donations Without the Needed Reservation. - The their marriage settlements as much as
donation may comprehend all the present property59 one-fifth of their present property, and with
of the donor, or part thereof, provided he reserves, in respect to their future property, only in the
full ownership or in usufruct, sufficient means for the event of death, to the extent laid down by the
support of himself, and of all relatives who, at the time provisions of the Family Code referring to
of the acceptance of the donation, are by law entitled to testamentary succession (Art. 84).
be supported by the donor (Art. 750).60
● An excessive donation under this article is not 3. Limitation on the Giver/Receiver. -
void, but merely reducible to the extent Notwithstanding the provisions of Art. 750, no
support of the relatives is impaired. The party person may:
prejudiced can ask the court for the (1) Give by donation more than what he can give by
reduction. will; and
● Aside from the reservation as to SUPPORT, (2) Receive by way of donation more than what the
the donor must also reserve enough of his giver may give by virtue of a will.
● The donation shall be inofficious in all that it
59
As used in this article, “present property’’ is that which may exceed this limitation (Art. 752).
the donor can dispose of at the time of the donation (See
Art. 751). 4. When Donation is Made to Several Persons Jointly.
60
Donations Not Included in This Article: 1) The onerous - It is understood to be in equal shares.61
donation; 2) The donation mortis causa [for the donation
takes effect only upon the donor’s death]; and 3) The
donations propter nuptias [for these donations are never The preceding paragraph shall not be applicable to
61
reducible; they are revocable on the grounds expressly donations made to the husband and wife jointly, between
provided by law]. whom there shall be a right of accretion, if the contrary
GENERAL RULE: No right to accretion among them. after the donation had been made, unless there is a
EXCEPTION: Unless the donor has otherwise stipulation to this effect); and
provided. (2) Pay only for debts up to the value of the property
donated (unless the contrary is stipulated or intended).
5. Subrogation of the Donee and When Warranty
Exists - The donee is subrogated to all the rights and 10. Rules When There is No Such Stipulation That
actions which in case of eviction would pertain to the the Donee Would Pay the Donor’s Debts (Art. 759)
donor. The latter, on the other hand, is not obliged to GENERAL RULE: Donee is not required to pay.
warrant the things donated, save when the donation is EXCEPTION: When the donation is made in fraud of
onerous, in which case the donor shall be liable for creditors (creditors at the time the donation was
eviction to the concurrence of the burden. made, not subsequent ones, otherwise it cannot be
said that they have been defrauded).
The donor shall also be liable for eviction or hidden ● The law establishes a presumption when the
defects in case of bad faith on his part (Art. 754). donation is apparently in fraud of creditors,
namely failure to reserve sufficient property
6. Donations With Reservations on the Right to (at time of donation) to pay previous debts.
Dispose. - The right to dispose of some of the things
donated, or of some amount which shall be a charge Note: The presumption is rebuttable, hence, even
thereon, may be reserved by the donor; but if he though there has not been enough reserved, there is
should die without having made use of this right, the still a chance that the donation is really not
property or amount reserved shall belong to the fraudulent, in which case, the donee does not have to
donee (Art. 755). pay.
● Fraud of creditors may of course be proved
7. Donation of Naked Ownership and Usufruct. - The through other means.
ownership of property may also be donated to one
person and the usufruct to another or others,
provided all the donees are living at the time of the REVOCATION AND REDUCTION OF DONATIONS
donation (Art. 756).62
Every donation inter vivos, made by a person having
8. Reversion. - Reversion may be validly established no children or descendants, legitimate or legitimated
in favor of only the donor for any case and by subsequent marriage, or illegitimate, may be
circumstances, but not in favor of other persons unless revoked or reduced as provided in the next article, by
they are all living at the time of the donation. the happening of any of these events (Art. 760):
● Any reversion stipulated by the donor in favor (1) If the donor, after the donation, should have
of a third person on the matter shall be void, legitimate or legitimated or illegitimate children, even
but shall not nullify the donation (Art. 757). though they be posthumous;
(2) If the child of the donor, whom the latter believed to
9. Rules When There is a Stipulation to Pay Debt (Art. be dead when he made the donation, should turn out to
758) be living; and
(1) Pay only for prior debts (not for debts contracted (3) If the donor should subsequently adopt a minor
child.

has not been provided by the donor. It takes place in
proper cases in the following instances: 1) in case of
1. Reduction of the Donation. - The donation shall be
predecease [donee dying ahead of donor before perfection]; 2) revoked or reduced insofar as it exceeds the portion
in case of incapacity of the [of donee]; and 3) in case of that may be freely disposed of by will, taking into
refusal or repudiation [by donee]. In all three cases, there account the whole estate of the donor at the time of
ordinarily would not be any perfection of the donation, the birth, appearance, or adoption of a child (Art.
hence the necessity of an express provision of the law on 761).
the matter. ● The value of the estate (hereditary) is: The
62
What this means, when one person receives the usufruct,
value at the birth, appearance, or adoption
it is understood that the other donee receives only the
naked, not the full ownership.
PLUS the value of the donation (at the time
donation was made).
● The value of the donation must be added the non-compliance with the condition, may
other wise absurdities may arise: moreover, be transmitted to the heirs of the donor, and
had not the donation been made, its value may be exercised against the donee’s heirs.
would still be part of the estate; finally, the
law does not say that the whole estate will 7. Grounds of Ingratitude. - The acts of ingratitude
be that remaining at the time of birth, are: 1) purely PERSONAL (hence the act must have
appearance or adoption, it merely says that been committed by the DONEE, and not by his wife
said value must be taken into account (See or relatives); and 2) EXCLUSIVE (hence, those not
Art. 761). enumerated are deemed excluded).

2. What the Donee Must Do if the Donation is It may be revoked in the following cases:
Reduced (Art. 762) (1) If the donee should commit some offense against
(1) If the property is still with him, return the the person, the honor or the property of the donor, or of
property; his wife or children under his parental authority;
(2) If the property has been sold, give the value (2) If the donee imputes to the donor any criminal of-
(usually the price of the sale) to the donor; fense, or any act involving moral turpitude, even though
(3) If the property has been mortgaged, the donor he should prove it, unless the crime or the act has been
may pay off the debt, but he can recover committed against the donee himself, his wife or
reimbursement from donee; and children under his authority; and
(4) If the property cannot be returned (as when it has (3) If he unduly refuses him support when the donee is
been lost or totally destroyed), return its value (value legally or morally bound to give support to the donor
not at time of loss but at perfection of donation). (Art. 765).

Note: Since the donee becomes the owner from the 8. Effect on Alienations and Mortgages If the
time the donation was perfected, it is only logical Donation is Revoked Because of Ingratitude. - The
that he bears the loss and the risk of deterioration or alienations and mortgages effected before the
depreciation. notation of the complaint for revocation in the
Registry of Property shall subsist. Later ones shall be
3. Prescription of Action for Revocation or Reduction. void Art. 766).
- The action for revocation or reduction on the ● The donor shall have a right to demand from
grounds set forth in Article 760 shall prescribe: the value of the property alienated which he
(1) After 4 years from the birth of the first child; or cannot recover from third persons, or the sum
(2) From his legitimation, recognition. or adoption; or for which the same has been mortgaged. The
(3) From the judicial declaration of filiation; or value of said property shall be fixed as of the
(4) From the time information was received regarding time of the donation (Art. 767).
the existence of the child believed dead (Art. 763).
● This action cannot be renounced, and is 9. The Returning of Fruits (Art. 768)
transmitted, upon the death of the donor, to his
THE FRUITS ACCRUING (1) Birth, adoption,
legitimate and illegitimate children and
FROM THE TIME THE reappearance (Art. 760);
descendants.
ACTION IS FILED MUST or

BE RETURNED IF THE (2) Inofficiousness of the
6. Failure to Comply with Conditions. - It shall be
GROUND IS: donation because the
revoked at the instance of the donor, when the donee
legitime has been
fails to comply with any of the conditions which the
impaired (Art. 771); or
former imposed upon the latter (Art. 764).
(3) Ingratitude. (Art.
● The property donated shall be returned to the
765).
● donor, the alienations made by the donee,
and the mortgages imposed thereon by him THE FRUITS RECEIVED Non-compliance with
being void, with the limitations established, AFTER FAILURE TO any of the conditions
with regard to third persons, by the Mortgage FULFILL THE imposed.
Law and the Land Registration Laws. CONDITION/S MUST BE
● This action shall prescribe after 4 years from
13. Persons Who Can Ask for the Reduction of
RETURNED IF THE
Inofficious Donation (Art. 772)
GROUND IS:
MAY ASK FOR CANNOT ASK FOR THE

REDUCTION ON THE REDUCTION
10. No Renunciation in Advance of the Action to
GROUND OF
Revoke because of Ingratitude. - The right to revoke
INOFFICIOUSNESS63
because of ingratitude cannot be renounced in
advance (that is, prior to or at the time of the (1) The compulsory (1) voluntary heirs of
perfection of the donation). heirs of the donor the donor (such as
● However, if the act of ingratitude has already (whether children, other friends, brothers, etc.);
been committed, the right to revoke may be descendants, ascendants (2) devisees (recipients
RENOUNCED for this would be merely an act or surviving spouse); and of gifts of real property
of forgiveness. (2) The heirs and in a will);
● The action to revoke because of ingratitude successors-in-interest of (3) legatees (recipients
prescribes within 1 year. The period must be the compulsory heirs. of gifts of personal
counted from the time: property in a will); and
(1) the donor knew of the fact or cause of (4) creditors of the
ingratitude; and deceased.
(2) provided that it was possible for him to
bring the action (Art. 769).
14. Preference Given to Earlier Donations. - If, there
11. No Transmissibility of Right. - This action shall being two or more donations, the disposable portion is
not be transmitted to the heirs of the donor, if the not sufficient to cover all of them, those of the more
latter did not institute the same, although he could have recent date shall be suppressed or reduced with
done so, and even if he should die before the expiration regard to the excess (Art. 773).
of one year.
● Neither can this action be brought against GENERAL RULE: Preference is given to earlier
the heir of the donee, unless upon the latter’s donations (first come first served). Therefore, if it is
death the complaint has been filed (Art. 770). essential to reduce, the subsequent ones must first
be reduced.
12. Rules Regarding Inofficious Donations (Art. 771) EXCEPTION: Wedding gifts of jewelry, clothing and
● Note that the value of the estate is that outfit by parents and ascendants in favor of
which it had, not at the time of donation, but descendants shall not be reduced (even if they be
at the time of the donor’s death. more recent), provided they do not exceed one tenth
● Inofficious donations may not only be reduced; (1/10) of the free portion. (See Art. 1070).
they may be completely cancelled.
● Since the inofficiousness of the donation
cannot be determined until after the donor’s
death, it follows that in the meantime, the
donation is valid and ownership is
transmitted to the donee during the donor’s
lifetime.
● Because of this transfer of ownership, it
follows that:
(1) The donee gets the fruits while the donor is
still alive (by the principle of accession
discreta);
(2) The donee can take advantage of natural or
artificial incorporations or attachments (by the
principle of accession continua); and 63
They cannot renounce their right during the lifetime of
(3) The donee bears the loss in case of
the donor, either by express declaration, or by consenting
destruction or deterioration. to the donation.
SUMMARY 2) by reason of unworthiness (Art. 740); and
3) by reason of possible undue influence (Art. 87,
DISTINCTION BETWEEN REVOCATION AND REDUCTION Family Code).

REVOCATION REDUCTION

This is TOTAL (affects This is as a rule, only ON DONATIONS
the whole property) PARTIAL, and applies ● Donation of real property must be in a public
regardless of whether only when the legitime instrument.
the legitime has been has been IMPAIRED. ● Oral donation may be basis of ownership.
impaired or not. Thus, the legitime must ● Verbal donation of land can be basis of possession.
always be preserved. ● Verbal donation may ripen into ownership by
prescription.
As a rule, for the benefit As a rule, for the benefit ● Defective donation may ripen into ownership by
of the donor. of the heirs of the prescription.
donor, since their ● Verbal donation may constitute legal basis for
legitimes are supposed adverse possession.
to be preserved. ● Invalid donation may give rise to prescription.
● Void donation may serve as basis of acquisitive
As a rule, for the benefit prescription.
of the heirs of the ● A donation of real property in order to be
donor. efficacious must be embodied in a public
instrument and that the acceptance must be in the
deed of gift or in a separate public instrument and

that the donor should be duly notified of the
GROUNDS FOR REVOCATION AND REDUCTION
acceptance.
REVOCATION REDUCTION ● Deed of donation which does not identify land
donated is of no effect.
(1) Fulfillment of Birth, Adoption, ● Assignment of real property which partakes of the
resolutory conditions or Reappearance (Art. 760); nature of donation must be in a public document
charges (Art. 764); and (2) Inofficiousness (Art. and accepted in writing.
(2) Ingratitude (Art. 771); ● Attorney-in-fact of donor is not incapacitated as
765). (3) In insufficient donee.
property is left for ● Incapacities applicable to donation are similar to
support of donor and his those in testamentary succession.
relatives (Art. 750); and ● Acceptance of donation is essential to its validity.
(4) If made in fraud of ● Only donation inter vivos need be accepted.
creditors (creditors at Donation mortis causa being in the nature of
the time of the legacies need not be accepted.
donation). ● Donation made in writing should be accepted in the
same form.
VOID, INEFFECTIVE, OR UNPERFECTED DONATIONS ● Donation is perfected only upon acceptance.
(1) Those not perfected in accordance with the forms Donation without acceptance is not valid.
and solemnities of law (particularly when there is no ● Donation transfers title upon acceptance with all
proper acceptance); the requisite formalities.
(2) Those made with property outside the commerce ● Grandmother may accept pure donation for
of man; grandchild although she was not legal guardian.
(3) Those made with future property (Art. 751) except ● Conditions in a donation are binding on donee.
those provided for in marriage settlements (Art. 84, ● Where right to dispose of property was reserved by
Family Code); and donor, donation is revocable.
(4) Those made to persons specially disqualified: ● Retention of ownership and title by grantor is
1) By reason of public policy (Art. 739); incompatible with donation inter vivos of such title.

● Only onerous donations are governed by law of ● Action for revocation should be filed within 4 years
contracts. from non-compliance with conditions.
● Donee has burden of proving onerous donation. ● Donation mortis causa is invalid if not executed with
● Donation in consideration of the services rendered formalities of a will.
and to be rendered by donee is onerous. ● Legal heirs, who are not forced heirs, cannot
● All donations for services previously rendered are question decedent’s donation inter vivos.
remunerative or for valuable consideration. ● Irrevocability is characteristic of donation inter vivos.
● Donation to forced heirs are subject to collation. ● Characteristics of donation mortis causa:
● Obligation to collate donation does not prescribe 1. The deed conveys no title or ownership to the
during life of donor. transferee before the death of the transferor [that
● Creditors cannot ask for reduction of inofficious the donor retains the ownership, full on naked,
donation. and control of the property while alive];
● Forced heirs are entitled to have inofficious 2. That before the transferor’s death, the transfer
donation set aside. should be revocable by the transferor at will; and
● Collation of donation may be threshed out in 3. That the transfer should be void if the transferor
settlement of estates of deceased donor. should survive the transferee.
● Donations inter vivos are regarded as advances ● Donation transferring ownership immediately is
chargeable to the recipient’s share in the legitime. inter vivos.
● Inofficiousness of donations presupposes that the ● Donation from husband to wife is illegal.
sum of the donee’s share in the legitime plus the ● Donee who accepts donation is estopped to deny
free portion, is exceeded by the value of the thing down to ownership.
donation as of the donation. ● Lack of description of donated property is curable
● Inofficiousness is established for the protection of by extrinsic evidence.
their legitime; and should they desire to waive the ● Donation of conjugal properties affects only the
reduction of the donations, they can freely do so. donor’s half interest therein.
● Donation is inofficious when donor has no other ● Unregistered deed of donation cannot affect third
property than that donated. person.
● Courts alone can declare revocation of donation. ● Mere trustee of property cannot donate it.
● Revocation of donation must be with donee’s ● Donation does not require tradition to complete
consent or by judicial decree. transfer of ownership.
● Prior donation is not revoked by subsequent one. ● In pari delicto rule does not apply to donee who is a
● Action for revocation of donation may be brought by minor.
donor even after donee’s death. ● Services between spouses are not contemplated in
● Positive proof of non-compliance with conditions is remunerative onerous donation.
needed to revoke donation. ● A gift: a transfer of the title to property to the one
● Donation may be revoked only on grounds provided who receives it without paying for it. The act by
by law. which the owner of a thing voluntarily transfers the
● Subsequent disposition of property by donor does title and possession of it from himself to another
not revoke prior donation thereof. person, without any consideration.
● Juridical sanction is necessary for revocation of ● A donation is never perfected until it has been
donation with onerous cause. accepted; for an acceptance is a requisite to make
● When terms of donations have been substantially the donation complete.
changed, reversion does not lie.
● Heir of donor cannot have better right than ON DONATION INTER VIVOS
predecessor to assail donation made by the latter. ● A gift between living persons. A contract which
● Donation is not revocable by donor’s unilateral act. takes place by the mutual consent of the giver; who
● Action to revoke donation for breach of condition is divests himself of the thing given in order to
intransmissible and prescribes after 10 years. transmit the title of it to the donee, and the donee
● Prescription of action to revoke donation begins who accepts and acquires the legal title to it.
upon commission of breach by donee.
ON DONATION MORTIS CAUSA

● A gift made by a person in sickness, or other collation which the heir acquired by an onerous title
immediate peril, who, apprehending his death as from the ancestor; that is, where he gave a valuable
near, delivers, or causes to be delivered, to another, consideration from them. And, upon the same
the possession of any personal goods, to keep as his principle, if a co-heir claims no share of the estate,
own in case of donor’s decease. he is not bound to collate.
● The civil law defines it to be a gift under
apprehension of death; as, when anything is given ON ADEMPTION
upon condition that if the donor dies the donee ● The extinction or withholding of a legacy in
shall possess it absolutely, or return it if the donor consequence of some act of the testator which;
should survive or should repent of having made the though not directly a revocation of the bequest, is
gift, or if the donee should die before the donor. considered in law as equivalent thereto, or
● It differs from a legacy, in as much as it does not indicative of an intention to revoke.
require proof in the court of probate, and no assent ● The ademption of a specific legacy is effected by
is required from the executor to perfect the donee’s the extinction of the thing or fund, as it is generally
title. It differs from a gift inter vivos because it is stated, without regard to the testator’s intention.
ambulatory and revocable during the donor’s life.
● A delivery of more than what was intended to be ON GIFT
given cannot overrule the donor’s intention and the ● A voluntary conveyance or transfer of property; that
donee can take only as much as was intended to be is, one not founded on the consideration of money
given. or blood.
● Technically, there must be an acceptance by the ● A voluntary, immediate, and absolute transfer of
donee as well as a delivery by the donor; but this is money without consideration.
a matter of slight practical importance, for where ● A mere intention or naked promise to give, without
the gift is beneficial to the donee, an acceptance some act to pass the property, is not a gift. There
will be presumed. may be repentance (the locus paeritentiae) as long
● The delivery must be as complete as the nature of as the gift is incomplete in the mode of making it.
the property will admit of. ● Under a gift, a person may take a benefit to accrue
● To make a gift valid, there must be a renunciation at a future day – it may be at the donor’s death.
by the donor and an acquisition by the donee, of all ● The subject of the gift must be certain; and there
interest and title to the property intended to be must be the mutual consent and concurrent will of
given. both parties. There must be an intention on the part
● To constitute such a gift, the subject must be of the donor to make a gift and expressions of it are
delivered either to the donee or to some person for admissible as part of the res gestae; and also
his use and benefit and the donor must part with all declarations of the donor prior to the gift;
dominion over the property, and the title must vest acceptance is also necessary.
in the donee, subject to the right of the donee at ● Delivery must be according to the nature of the
any time to revoke the gift. thing. It must be an actual delivery, so far as the
● A donation mortis causa does not require the subject is capable of delivery. If the thing be not
executor to assent, and is revocable by the donor capable of actual delivery, there must be some act
during his life, or by recovery or resumption of equivalent to it; something sufficient to work an
possession. immediate change in the dominion of the property.
The donor must part not only with the possession,

but with the dominion.
ON COLLATION ● The gift is complete when the legal title has
● The supposed or real return to the mass of the actually vested in the donee.
succession which an heir makes of the property he ● One who makes a deposit in trust for a fictitious
received in advance of his share or otherwise, in person does not lose control of his money.
order that such property may be divided together ● A gift is effectual only after the intention to make it
with the other effects of the succession. has been accompanied by delivery of possession or
● As the object of collation is to equalize the heirs, it some equivalent act.
follows that those things are excluded from

● When the gift is perfect, it is then irrevocable unless
Note: Art. 716 speaks of “domesticated”, not “domestic
it is prejudicial to creditors or the donor was under
animals.”
a legal incapacity or was circumvented by fraud,

except in case of donation mortis causa where it is
5. On Pigeons and Fishes. - Pigeons and fish which
revocable during the donor’s life.
from their respective breeding places pass to another
● Delivery first and gift afterwards of a chattel
pertaining to a different owner shall belong to the
capable of delivery, is as effectual as gift first and
latter, provided they have not been enticed by some
delivery afterwards.
artifice or fraud (Art. 717).
● In cases of gifts by husband to wife, or parent to

child living at home, the necessity for an actual ON ANIMALS
change of possession does not exist. ● Any animate being which is not human, endowed
with the power of voluntary motion.
● Domitas are those which have been tamed by man;
domestic.
● Ferae naturae are those which still retain their wild
VIII. ANIMALS nature.
● A man may have an absolute property in animals of

a domestic nature, but not so in animals ferae
1. Hunting and Fishing. - The right to hunt and to fish
naturae, which belong to him only while in his
is regulated by special laws (Art. 715).
possession. Yet animals which are sometimes ferae

naturae may be tamed so as to become subjects of
2. Kinds of Animals. - It can either be:
property.
(1) wild;
● Animals ferae naturae were considered by the
(2) domesticated or tamed (once upon a time they
Roman law as belonging in common to all the
were wild); and
citizens of the state; and by the common law the
(3) domestic or tame [reared under man’s control].
property in game was based on common ownership

and subject to governmental authority. One may
3. Acquisition of Domesticated and Domestic Animals
have the privilege of hunting wild animals to the
DOMESTICATED / DOMESTIC / TAME exclusion of other persons. In the U.S.A., the
TAMED ownership of such animals is vested in the state,
not as proprietor, but in its sovereign capacity, as
May be acquired by Cannot be acquired by representing the people and for their benefit. It
occupation (20 days) occupation unless there alone has power to control the killing and
unless a claim has been is an ABANDONMENT. ownership of wild game. Animals wild by nature are
made for them. subjects of ownership while living only when on the
land of the person claiming them. One has a right in
4. On Bees and Domesticated Animals (Art. 716) wild game birds within his game preserves, which
● The owner of a swarm of bees shall have a entitles him to protect them against trespassers.
right to pursue them to another’s land, Deer, when reclaimed and enclosed, are property.
indemnifying the possessor of the latter for ● Bees are ferae naturae; but when hived or reclaimed
the damage. one may have a qualified property in them; because
● If the owner has not pursued the swarm, or bees have a local habitation, more often in a tree
ceases to do so within 2 consecutive days, the than elsewhere, and while there, they may be said
possessor of the land may occupy or retain to be within control, because the tree may be at any
the same. time be filled. But the right to cut it down is in the
● The owner of domesticated animals may also owner of the soil, and therefore such property as
claim them within 20 days to be counted from the bees are susceptible of is in him also. The mere
their occupation by another person. This period finder of them on the land of another acquires no
having expired, they shall pertain to him who title to the tree or the bees.
has caught and kept them. ● The common law recognized a property in dogs.
Dogs are reculiar in that they differ among

themselves more widely than any other class of IX. CONDOMINIUMS/SUBDIVISIONS
animals, and can hardly be said to have a

characteristic common to the entire race. They
stand between animals ferae naturae, in which, until REPUBLIC ACT NO. 4726
killed, there is no property, and domestic animals, AN ACT TO DEFINE CONDOMINIUM, ESTABLISH
in which the right of property is complete. REQUIREMENTS FOR ITS CREATION, AND GOVERN
● The owner of a mischievous animal, known to him ITS INCIDENTS
to be so is responsible, when he permits him to go

at large, for the damage he may do. He is liable,
SECTION 2. A condominium is an interest in real
though not negligent, in the matter of his escape
property consisting of separate interest in a unit in a
from a close. It is said that though it may be, in a
residential, industrial or commercial building and an
certain sense, that the action for injury by vicious
undivided interest in common, directly or indirectly,
animals is based upon negligence, such negligence
in the land on which it is located and in other
consists not in the manner of keeping the animal, or
common areas of the building. A condominium may
the care exercised in respect to confining him, but
include, in addition, a separate interest in other
in the fact that he is ferocious and the owner knows
portions of such real property. Title to the common
it. The negligence consists in keeping such animal.
areas, including the land, or the appurtenant
● One knowingly harboring a vicious and dangerous
interests in such areas, may be held by a corporation
dog is liable for damages sustained by others from
specially formed for the purpose (hereinafter known
its bite. Keeping a dog known to be savage stands
as the "condominium corporation") in which the
on the same footing as keeping a wild beast. It is
holders of separate interest shall automatically be
enough if he occasionally attacks human being
members or shareholders, to the exclusion of others,
without provocation; the owner must ave had actual
in proportion to the appurtenant interest of their
knowledge. One who has long harbored a vicious
respective units in the common areas.
dog is presumed to know its propensities.

● Where one kept dogs of the same family and
The real right in condominium may be ownership or
appearance, a person bitten by one of them is not
any other interest in real property recognized by law,
required to prove which one, nor to prov that
on property in the Civil Code and other pertinent
previous attacks on others were made by the same
laws.
dog.

● When wild animals are kept for a purpose
SECTION 5. Any transfer or conveyance of a unit or an
recognized as not censurable, all that can be
apartment, office or store or other space therein,
demanded of their keeper is that he shall take that
shall include the transfer or conveyance of the
superior precaution to prevent their doing mischief
undivided interests in the common areas or, in a
which their propensities in that direction justly
proper case, the membership or shareholdings in the
demand of him. One who knowingly, voluntarily,
condominium corporation: Provided, however, That
and unnecessarily places himself within reach of a
where the common areas in the condominium project
ferocious animal which is chained up cannot
are owned by the owners of separate units as
recover for injuries received. An injunction will lie
co-owners thereof, no condominium unit therein
against keeping a vicious dog without appropriate
shall be conveyed or transferred to persons other
restraint. It is a nuisance.
than Filipino citizens, or corporations at least sixty
○ Any person may justify the killing of ferocious
percent of the capital stock of which belong to
animals.
Filipino citizens, except in cases of hereditary
○ It is the duty of the owner of domestic animals
succession. Where the common areas in a
to keep them upon his own premises.
condominium project are held by a corporation, no
transfer or conveyance of a unit shall be valid if the
concomitant transfer of the appurtenant membership
or stockholding in the corporation will cause the
alien interest in such corporation to exceed the limits
imposed by existing laws.

REGARDING THE FOREIGN INVESTMENT IN LAND citizens xxx
AND/OR BUILDINGS ○ Section 10. No private corporations or
association may hold alienable lands of the
(1) Can foreign investors or multinational public domain except by lease not to exceed one
corporations own building or units thereof (as in thousand hectares in area; nor may any citizen
condominium)? Apartments? hold such lands by lease in excess of five
● Foreigners or multinational corporation may own hundred hectares or acquire by purchase or
building, provided they are constructed on rental homestead in excess of twenty-four hectares
land, the lease not to exceed 10 years. xxx
● Regarding the ownership of condominium units ○ Section 14. Save in cases of hereditary
by foreign investors or multinational corporation, succession, no private land shall be transferred
the same may be allowed but subject to the or conveyed except to individuals, corporations
qualifications mentioned in the proviso of or associations qualified to acquired or hold
Section 5 of RA 4726 which needs: lands of the public domain.
○ xxx Provided, however, [t]hat where the ● [T]he following conclusions may be made your
common areas in the condominium project second query:
are owned by the owners of separate units as 1) Only citizens of the Philippines, as individuals,
co-owners thereof, no condominium unit may acquire both private lands and lands of
herein shall be conveyed or transferred to the public domain. Therefore, there can be no
persons other than Filipino citizens, or joint ownership of such lands between Filipinos
corporations at least 60% of the capital stock of and foreign investors are individuals.
which belong to Filipino citizens, except in cases 2) However, corporations or associations at least
of hereditary succession. 60% of the capital stock of which is owned by
Filipinos, and the remainder by foreigners, may
Where the common areas in a condominium own private lands.
project are held by a corporation, no transfer 3) Corporations or associations — whether of
or conveyance of a unit shall be valid if the citizens or of citizens and aliens — may not
concomitant transfer of the appurtenant own, but may only hold by lease lands of
membership or stockholding in the corporation public domain.
will cause the alien interest in such corporation 4) As to the joint-ownership at 60%-40% of
to exceed the limits imposed by existing law. lands and buildings foreign investors and
● As to the ownership by foreign investors or Filipinos, this may be legally feasible as long
multinational corporations of apartments which as the ownership of the land building is by
do not fall within the purview of the corporations or associations at least 60% of
Condominium Act (RA 4726), any law which the capital stock of which is owned by Filipino
prohibits aliens or foreign corporations from citizens and only the remainder by the foreign
owning apartment buildings, so long, of course, investors.
as they will merely lease the land on which the
building will be constructed, for a period not
exceeding 10 years. REGARDING FOREIGN INVESTMENT IN
CONDOMINIUMS
(2) Can there be joint-ownership at 60%-40% of land
and building between foreign investors and their May 100% owned and controlled foreign firms set up
Filipino counterparts? condominiums corporations under RA 4726, if the
● The following provisions of Article XIV of the land is leased? If the answer in the affirmative, would a
Constitution are pertinent: lease for a period of 99 years be allowable? Would a
○ Section 9. The disposition, exploration, lease of the land for a period of 50 years renewable for
development, exploitation, or utilization of any another period of 50 years, be legally tenable?
of the natural resources of the Philippines shall ● No provision therein which, expressly or by
be limited to citizens of the Philippines, or to necessary implication, prohibits a corporation
corporations or associations at least sixty per whose capital stock is wholly owned by
centum of the capital of which is owned by such aliens from establishing a condominium
corporation and setting up a condominium it be case covered by the second sentence,
project on leased land. the transfer to aliens of units in the project may
● 25 years was fixed as the maximum be made only up to the point where the
allowable period. Even this period may be too concomitant transfer for membership or
long, so long as virtually to amount to a stockholding in the condominium corporation
transfer or ownership of the property would not cause the alien interest in such
purportedly leased. corporation to exceed 40% of its entire capital
● Pending determination of the reasonable stock.
period by the courts, and in the absence of ● In conclusion:
legislation on the subject, 10 years would be 1) Any corporation which is owned 100%
more in consonance with the spirit of the by a foreign firm may establish a
Organic Law. "condominium corporation" under R.A.
● In the case where the condominium 4726 and set up a condominium
corporation is a Filipino corporation which project on land leased for a period
owns the land on which the condominium is not to exceed 10 years.
located, the question of whether interests in 2) Where the condominium corporation
units in the condominium together with an is a Filipino corporation which owns
undivided interest in the common areas thereof the land on which the condominium
may be transferred to foreigners. project is situated, R.A. 4726 allows
● But in this connection it should be stressed the transfer to an alien of an
that section 5 of the Act contains a pertinent "interest" in a "unit" in the said
prohibition. Said section reads: condominium, and of an "undivided
○ "Any transfer or conveyance of a unit, or an interest" in the common areas thereof,
apartment office or store or other space subject to the qualifications
therein, shall include the transfer or mentioned in the proviso of section 5
conveyance of the undivided interests in the of said Act.
common areas or, in a proper case, the
membership or shareholdings in the
condominium corporation; Provided,
however, that there were the common areas
in the condominium project are owned by
the owners of separate units as co-owners
thereof, no condominium unit therein shall
be conveyed or transferred to persons other
than Filipino citizens, or corporations at
least sixty percent of the capital stock which
belong to Filipino citizens, except in cases
of hereditary succession. Where the common
areas in a condominium project are held by
a corporation, no transfer or conveyance of a
unit shall be valid if the concomitant
transfer of the appurtenant membership or
stockholding in the corporation will caused
the alien interest in such corporation to
exceed the limits imposed by existing laws."
● Applying the proviso in this section to the
present case, the result would be so that
should it be a case covered by the first
sentence of the proviso, no unit in the
condominium may be transferred to aliens or
to corporation more than 40% of the capital
stock of which is owned by aliens; and should

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This is exactly what I have indicated it to be: a memory Note: There can be no true easement on one’s

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